ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-721 of 2009

Date Order with signature of Judge

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Bin Yamin.

Dates of hearing: 4^th,5^th,10^th & 11^th June 2009.

Mr. Khalid Javed Khan, Advocate for petitioner.

Mr. Adnan Karim, A.A.G. Sindh for respondents 1, 2 & 3.

Mr. Zia-ul-Haq Makhdoom, Advocate for respondent No.4.

Mr. M.A.Khan, Advocate for respondent No.5.

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GULZAR AHMED, J.:- Petitioner has filed this petition with the following prayers:

a) To declare that the orders dated 30.03.2009 and 29.04.2009 are ab-initio void, illegal, against the law and principles of natural justice;

b) Any other relief(s), which this Honourable Court may deem fit looking to the circumstances of this case.

Respondent No.2 has filed para-wise comments while the respondent No.5 has filed counter affidavit.

As the learned A.A.G. has raised the question about the maintainability of this petition on the ground that the petitioner is a civil servant and his remedy lies before the Sindh Service Tribunal because the question agitated in this petition being that of transfer and posting, same being the matter of terms and conditions of service of the petitioner. In this respect learned A.A.G. has relied upon the case of PEER MUHAMMAD V/S GOVERNMENT OF BALOCHISTAN (2007 SCMR 54). On such objection raised by learned A.A.G., the learned counsel for the petitioner made extensive submissions and relied upon considerable case law to canvass before the Court that petitioner is not a civil servant rather an employ belonging to Sindh Councils Unified Grade Service which has its own rules separate from that the rules enacted for application to the civil servant under the Sindh Civil Servant Act, 1973.

To appreciate the submissions of learned counsel it may be necessary to examine the some relevant facts. It appears that petitioner was appointed on 06.3.1980 as Sub-Engineer BPS-11. In the year 1994 he was granted selection grade of BPS-16 and on the basis of his seniority-cum-fitness was posted as Assistant Engineer BPS-16 in the year 2001. Subsequently, the petitioner was promoted to the post of Assistant Executive Engineer BPS-17 in the year 2006. It is alleged in the petition that from the date of initial appointment petitioner is working in Sindh Councils Unified Grade Service and that his service is regulated by the Sindh Councils Unified Grade Service Rules, 1982 (hereinafter to be called SCUGS Rules). The SCUGS Rules were framed under Section 103 read with section 78 of the Sindh Local Government Ordinance, 1979 which are comprehensive rules inasmuch as it, inter alia, provides for composition of service, its branches, appointments, its method, the requisite qualification, remunerations and allowances that are to be paid to such service, transfer and posting, seniority and other related matters. Such rules also provide that where matters not expressly provided for in these rules, the member of service shall be governed by such general rules applicable to the civil servants as are prescribed by Government. Besides these rules Sindh Councils Unified Grade Service (Pension Fund) Rules 1985 were also made under Section 103 read with Section 79 of Sindh Local Government Ordinance, 1979. By Section 196 of Sindh Local Government Ordinance, 2001 (hereinafter to be called the Ordinance 2001) the Sindh Local Government Ordinance, 1979 was repealed. Sub-section (2) and its proviso are as follows:

(2) Save as otherwise specially provided, nothing in the Ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken, investigation or proceedings commenced, order, rule, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee levied, resolution passed, direction given, proceedings taken or instrument executed or issued, under or in pursuance of any law repealed or amended by this Ordinance and any such thing, action, investigation, proceedings, order, rule, regulation, appointment, conveyance, mortgage, deed, document, agreement, fee, resolution, direction, proceedings or instrument shall, if in force at the commencement of this Ordinance and not inconsistent with any of the provisions of this Ordinance, continue to be in force, and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under this Ordinance or the law, as amended by this Ordinance.

Provided that, until otherwise decided by the Government, the Local Government Boards established under the Sindh Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local council Service shall continue to function.

The reading of the above subsection (2) and its proviso amply makes it clear that the rule made under the Sindh Local Government Ordinance, 1979 which was enforced at the time of commencement of the Ordinance 2001 will have effect as having been made under the Ordinance 2001. The proviso provides that the Sindh Local Government Board established under the Ordinance 1979 for the administration of officers and officials of local council service shall continue to function. It seems that pursuant to this provision in the Ordinance 2001, SCUGS Rules have been saved to the extent that they are not inconsistent with any of provisions of Ordinance 2001 and the Local Government Boards established under the Ordinance 1979 for the administration of officers and officials of the local council service has been allowed to function until otherwise decided by the Government. This position taken by learned counsel for the petitioner about the applicability of SCUGS Rules was not disputed either by learned A.A.G. nor by learned counsel for respondent No.5 rather this position was expressly admitted by these learned counsel as they also during the course of their arguments made reference to the provision of these rules meaning thereby that they have application to the case in hand. The respondent No.2 in para-wise comments also referred to these rules particularly in paras 4 & 6.

Having discussed that SCUGS Rules having application to the case of the petitioner, the effect of it would be that it is a different service from that of service defined under Section 2(b) of the Sindh Civil Servants Act, 1973. More-so, when Section 28(1) of the Ordinance, 2001 specifically provides that in every district the Government shall appoint a District Coordination Officer, who shall be a civil servant of the Federation or of the Province as for as possible in BS-20 with proviso that in the City District, the District Coordination Officer may be a civil servant of Federation or Province in BS-21. Excepting the District Coordination Officer, none of the officials serving under the Ordinance 2001 are said to be the civil servant. For the foregoing reasons we are of the considered view that the petitioner is not a civil servant but rather an employee of Sindh Councils Unified Grade Service to whom SCUGS Rules apply and keeping in view the rule laid down by full bench of this Court in the case of MUHAMMAD DAWOOD & OTHERS V/S FEDERATION OF PAKISTAN & OTHERS (SBLR 2007 SINDH 495) that irrespective of an employ of a State Controlled Corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under article 199 and that the rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law and thus Constitutional Petition challenging the same will be maintainable before High Court.

We now take up the matter relating to the merits of the case it self. Learned counsel for the petitioner has contended that the petitioner through order dated 12.1.2009 was transferred as Town Municipal Officer (TMO), Town Municipal Administration(TMA) Keamari Town, Karachi which post was joined by the petitioner but within about 2 ½ months thereof through order dated 30.3.2009 while the petitioner was transferred from the said post for reporting to Sindh Local Government Board for further posting and by the same order, the respondent No.5 was transferred and posted TMO, Keamari Town. He contended that such transfer of the petitioner was contrary to the standing directives of Chief Minister Sindh as contained in the memo dated 04.3.2006 and yet again it was also contrary to provision of Rule 13(1)(b) read with Item 8 of Schedule-III of Sindh Town Municipal Administration Rules of Business, 2002 inasmuch as approval of Town Nazim, Keamari Town was not obtained for premature transfer of the petitioner. He further contended that transfer of respondent No.5 to the post of TMO, Keamari Town was illegal inasmuch as such transfer has been made on the directives of Minister of Local Government as admitted in para-wise comments of respondent No.2 who was not the competent authority to make such transfer. He contended that after the impugned order dated 30.3.2009, further four successive orders were passed namely the order dated 24.4.2009 by which the respondent No. 5 was repatriated to his parent department, by order dated 29.4.2009 the respondent No.5 was again posted as TMO, Keamari Town. Through order dated 06.5.2009, the order dated 30.3.2009 was cancelled/withdrawn and the petitioner was allowed to continue as TMO, Keamari Town while respondent No.5 was transferred as TMO, Baldia Karachi and through further order dated 07.5.2009 the order dated 06.5.2009 was superseded whereby the order of posting of the petitioner as TMO, Keamari Town was cancelled/withdrawn, he was relieved of the charge of the said post with immediate effect with direction to report to Sindh Local Government Board and respondent No.5 was allowed to continue as TMO Keamari Town, forthwith. He states that the successive orders amply demonstrate the malafides of the respondents and political pressure that has been exerted for seeking of transfer of petitioner from the post of TMO Keamari Town and the posting of respondent No. 5 in the said post. In support of his submissions he relied upon the cases of ZAHID AKHTAR V/S GOVERNMENT OF PUNJAB AND 2 OTHERS (PLD 1995 SC 530), DIRECTOR GENERAL HEALTH SERVICES, NWFP PESHAWAR & OTHERS V/S DR. NIZAKAT IQBAL KARIM & ANOTHER (2000 SCMR 76) and ROSHAN KHAN, SET GOVERNMENT HIGH SCHOOL KUZ PAO, DISTRICT SHANGLA V/S DIRECTOR SCHOOLS AND LITERACY, NWFP PESHAWAR AND 4 OTHERS (2007 SCMR 599). Learned counsel, however, admitted that the post of TMO is that of a Grade 18 officer and that the petitioner who is a Grade 17 officer was having an officiating charge of TMO, Keamari Town, which the petitioner does not claim as a matter of right.

Mr. Zia-ul-Haq Makhdoom, the learned counsel for respondent No.4 also contended that the petitioner could not have been transferred without the approval of the Town Nazim, the respondent No.4 and that the transfer of the petitioner was also contrary to the standing directives of Chief Minister Sindh. He contended that respondent No. 4 has interest in the post of TMO of his town as he has to run the administration of the town efficiently and effectively and that the petitioner was a suitable person for undertaking the job of TMO Keamari Town. He, however, admitted that the post of TMO belongs to Grade 18 officer.

Learned A.A.G. on behalf of respondents 1, 2 & 3 contended that the petitioner being a Grade 17 officer and belonging to Engineering Branch of service under SCUGS Rules was not qualified to be posted to the post of TMO, Keamari Town as such post belongs to Grade 18 officer of Administrative Branch under the SCUGS Rules and that the respondent No.5 being a Grade 18 officer and belonging to Administrative Branch is qualified to be posted as TMO Keamari Town and that the order of transfer of the petitioner was competently made by the Secretary Local Government Department of Government of Sindh who is the prescribed authority under the Rule 11 of SCUGS Rules and relied upon the case of Muhammad Younus Aarin V/S Province of Sindh (2007 SCMR 134).

Mr. M.A.Khan, learned counsel for the respondent No.5 submitted that respondent No.5 being a public servant is personally not interested in any post but has to comply with the orders that are passed of his transfer and posting and that petitioner is not qualified to hold the post of TMO Keamari Town for the reason as given by learned A.A.G. and that petitioner was holding the post of TMO Keamari Town as officiating charge to which no right can be claimed by him and that the petition is liable to be dismissed. He also relied upon the case of MUHAMMAD YOUNUS AARIN V/S PROVINCE OF SINDH (2007 SCMR 134).

The admitted position on the record appears to be that petitioner is a Grade 17 officer and that he was holding the post of TMO Keamari Town which was a Grade 18 post on acting charge basis. It is also an admitted position on the record that the petitioner belongs to Engineering Branch of service under SCUGS Rules whereas the post of TMO belongs to Administrative Branch under the said rules. Rule 3 of SCUGS Rules in its Part-II provides for composition of service and divides them into five branches namely;

(a) Administrative Branch;

(b) Engineering Branch;

(d) Medical Branch; and

(e) Health Sub Branch.

Sub-rule (4) of Rule 3 provides that members of one branch or sub branch shall not be eligible for transfer to a post in other branch or sub branch. The very reading of Rule 3 clearly shows that the petitioner who belonged to Engineering Branch was not eligible for transfer to a post which belonged to another branch namely the Administrative Branch. The petitioner who belongs to Engineering Branch, his posting as TMO Korangi which post belongs to Administrative Branch was therefore contrary to Sub-rule (4) of Rule 3 of the SCUGS Rules. As regards the question of malafide and political influence more particularly that the transfer and posting of respondent No.5 as TMO Keamari Town has been made on directive of Minister for Local Government, it may first be noted that the petitioner himself was transferred through order dated 12.1.2009 from the post of Deputy Town Officer Korangi Town Karachi to the post of TMO Keamari Town until further orders. It was not a permanent transfer nor the petitioner possessed qualification for retaining the post of TMO but it was stopgap posting, to which the rule regarding tenure of transfer and posting will seemingly not apply rather no sooner a candidate meeting the qualification required for the post becomes available, the petitioner will have to vacate the same. The rule regarding current/additional charge and acting charge appointment has been laid down in SL No. 137 at page 235 of Estacode Revised Amended Edition 2006 and it runs as follows:

“Sl.No.137:

According to the existing instructions all appointments by promotion in higher posts are to be made through regular selection process i.e. with the approval of the Central Selection Board/Departmental Promotion Committee and the authority competent to make appointment to the grade in which the vacancy exists. However, in those cases where a vacancy in a higher post occurs for less than two months and it is considered impossible for good reasons to make arrangements for day to day work of that post to be carried on otherwise, the current charge of the duties of that post may be given temporarily, with the approval of the authority competent to make appointment to the said post, to the senior most officer in the cadre present at the place or in the organization where the vacancy may have occurred if he is otherwise fit and eligible for promotion.”

Paragraph 3 of the same SL. No.137 runs as follows:

3. The exercise of the powers as delegated shall be subject to the observance of the following conditions:-

(i) the arrangement should not be made for a period of less than one month and should not exceed three months. However, it maybe extended by another three months with the approval of the next higher authority;

(ii) as soon as the current charge is given, a proposal for regular appointment should be initiated and referred to DPC/CSB within a month; and

(iii) in making current charge arrangement, the senior most officer available in the organization and present at the place where the vacancy may have occurred, if he is otherwise fit and eligible for promotion, should be considered.

The reading of the above rule amply demonstrate that higher post held on current charge or acting charge basis by a lower grade employ is temporary until the new incumbent is made available through regular process and that higher post is held for not less than one month and not exceeding three months which can be extended for another three months with the approval of next higher authority. The petitioner was transferred and posted on current/acting charge as TMO Keamari through order dated 12.1.2009 and through order dated 30.3.2009, he was transferred from the post of TMO Keamari Town with direction to report to Sindh Local Government Board for further posting. In substance the petitioner has rendered service on current/acting charge from 12.1.2009 to 30.3.2009 that will count to be more than 2 ½ months and therefore it cannot be said to be premature transfer requiring the approval of the Town Nazim which approval in any case will seemingly apply to the TMO/TO who are regularly appointed/transferred to such post fulfilling the condition of qualification prescribed for such post. The respondent No.5 being a Grade 18 officer and belonging to Administrative Branch apparently seems to be qualified for holding the post of TMO and therefore posting of a qualified officer cannot be sacrificed at the alter of an officer who is merely serving such post on current/acting charge basis and who does not fulfill the qualification for holding such post.

So far the point that transfer and posting of respondent No.5 has been made on the directive of Minister of Local Government and such fact is admitted in para 9 of the para-wise comments filed by respondent No.2 it may be noted that there is no directive but approval and mere seeking or giving of approval for transfer and posting of respondent No.5 to the post of TMO, Keamari Town will in itself not raise a presumption that it was done so for political or extraneous reasons. The transfer order dated 30.3.2009 by which the respondent No.5 was posted as TMO Keamari Town was initially made by the Additional Chief Secretary (Local Government). Further order dated 24.4.2009 whereby the respondent No.5 was posted as TMO Keamari Town was passed by Secretary to the Government of Sindh Local Government Department. The subsequent orders dated 06.5.2009 and 07.5.2009 were also passed by the Secretary to the Government of Sindh Local Government Department. Such orders seem to be in accord with Rule 11(b) of SCUGS Rules. The transfer and posting of the respondent No. 5 as TMO Keamari Town also appear to have been made by competent authority as provided by the Rules. The three judgments cited by learned counsel for the petitioner on the point that the petitioner has been transferred prematurely and for political reasons have no application to the case in hand for the reasons that none of the three judgments, the case involved the question of an officer holding higher post by way of transfer on current/acting charge.

After hearing the learned counsel for the parties, through short order dated 11.6.2009, we have dismissed this petition in limine. The above are the reasons for the same.

J U D G E