PRESENT: Mr. Justice Ghulam Rabbani
Date of order . 0 9. 2 0 0 6 .
Petitioners: Nisar Ahmed Shaikh and Mahmood Ali Lakho, through Mr. Naraindas C. Motiani, Advocate.
Respondent No.1: Government of Sindh through Mr. Muhammad Sarwar Khan, Learned Additional Advocate General.
Respondents
No. 4 & 5: Saindal solangi and Mohammad Sharif Nizamani through Mr. Khalid Mehmood Siddiqui, Advocate.
Contemner: Through Mr. Abdul Ghafoor Mangi, Advocate.
Intervenor: Through Mr. Manzoor Ali Khan and Mr. Mohammad Azam Khan in CMA No. 6026 of 2005.
O R D E R
CMA NOS. 3778 & 3779 OF 2006
MUNIB AHMED KHAN. J, Through these two CMAs, the petitioner has sought action against the contemners, named in the applications, as well as restraining order against respondent from convening the meeting of Provisional Selection Board II on 15.08.2005 and announcing the result before issuing joint seniority list of all the merged department. During the course of hearing of these two applications, two other CMA Nos. 6025 of 2005 under order 1 rule 10 and CMA No. 6026 of 2005 under section 151 CPC were made by the Intervenor on the ground that they will be the persons who will be affected if any adverse order is passed on the listed applications. The matter came up for hearing on 20.12.2005 when CMA No. 6025 of 2005 was disposed of by consent, while CMA NO. 6026 of 2005 was allowed to the extent that Intervenor may contest the stay and contempt applications i.e. CMA No. 3778 of 2005 and CMA No. 3779 of 2005. In such a situation, learned counsel Mr. Manzoor Ali Khan alongwith Mr. Mohammad Aazam Khan appearing for Intervenors also argued the listed applications.
The dispute, as has been surfaced in these applications, is in respect to the relevant date of merger of two Government departments i.e. Education Works Department and Communication Work Department into one new department i.e. Work & Services Department and consequent thereto preparation of combined seniority list of the officials attached to that department. Learned counsel for the petitioner has given history of the litigation, the matter reached the Hon’ble Supreme Court of Pakistan and was remanded to this court, which decided the point of contest by declaring through its judgment dated 06.01.2004 that both the Departments merged on 01.11.2002 when the notification, in this respect, was issued by the Government. It was also observed in that judgment that all action and measure taken prior to 01.11.2002 were proposals, suggestion and were tentative in nature and had no binding effect.
Now the petitioner’s grievance is that after judgment dated 06.01.2004 by this court, official respondent No.3 issued notification dated 31.05.2004 of the persons of defunct Communication Work Department, promoting thereby Executive Engineer from BPS 18 to PBS 19 and thereafter some other notifications in respect to other grades for promotion was also issued and finally they issued letter for convening meeting on 15.08.2006 for considering the promotions of other officials by pick and choose from BPS 18 to BPS 19 and grade 19 to grade 20 from the officers of defunct Communication and Works Departments, ignoring thereby officers of education works department, notwithstanding the fact that both cadres stand merged on 01.11.2002 in terms of the judgment of this court dated 6.1.2004. Learned counsel further submits that the respondents would have issued joint seniority list of both the department, keeping in view merger on the certain dates and officials of one department would not have been taken up separately for promotion and by doing so they have violated the judgment dated 6.1.2004 of this court and as such have committed contempt of court hence may be proceeded against and that the result by the competent authority in pursuance of meeting of Provincial Selection Board II on 15.08.2005 may not be announced.
To the above arguments, learned Additional Advocate General appearing on behalf of official respondents have taken legal objection on the ground that there is no directions in the order dated 06.01.2004 of this court therefore, question of violation of any direction/order does not arise and that the instant Petition was disposed of on 06.01.2004, therefore it is now a closed chapter. He has also submitted that question of claim of seniority is the matter falling within the jurisdiction of Service Tribunal therefore, the request in this respect under the guise of contempt application is not maintainable. On merits, the learned Additional Advocate General has submitted that there was never a department like Sindh Education Work Department as contended by the petitioner while relevant department is Education Works Engineering Directorate and that in wake of devolution of Power Plan 2001 there was a general reorganization of the service structure at various level. As bulk of function was devolved upon the District /City Government, the Government of Sindh re-designated the remaining department as Works and Service Department. He has further submitted that admittedly and as apparent from the order of this court dated 06.01.2004 the Departments were merged on 01.11.2002 while Selection and Promotion of private respondents to the post of Chief engineer BPS 20 made on 07.02.2002, therefore, there was no contempt hence the contempt application is frivolous, as the above was never declared as illegal through judgment dated 06.01.2004. He further submitted that during the past proceedings, the applicant Mehmood Lakho has made a contempt application but with no result. He further submits that the Seniority list of officer of defunct Education Works Directorate is mentioned separately, therefore, promotion from PBS 18 to PBS 19 amongst the Engineers of Works and Service Wing were against existing vacancy at the strength of W & S Department and that official of both the Departments are to be promoted as per their recruitment rules and seniority. He has further submitted that the vacancies, on which the promotions have been proposed and were taken up were purely meant for Engineer of (C&W) Works & Services wing, hence the rules were effected in toto. He went on arguing that vacancies of Executive engineer do not pertain to Education Works. These lay on regular set of work and Service Department, as such promotions were made amongst the officers of W & S Department and seven Assistant Engineers Education works have also been promoted on the vacancies accruing against the post of Education Department. He has submitted that Government of Sindh and its Department cannot think of violating any of the order/direction of this Court, and that, all the actions have been taken strictly in accordance with section 8 (1) of Sindh Civil Service Act 1973 by which the Government is permitted, for the purpose of proper administration of service, to prepare Seniority List of the Members, according to cadres or post and that according to Probation Confirmation and Seniority Rule 1975, there shall be a seniority list of group of civil servants doing similar duty or performing similar function.
Mr. Manzoor Ali Khan, learned counsel for the petitioner, has argued that the defence taken by the Sindh Government is correct and respondents Nos. 4 and 5 were promoted prior to the order of the Hon’ble Court dated 06.01.2004 and that no violation has been pointed out by the applicant during hearing or even by the court itself, therefore, the contempt application itself is not maintainable and being frivolous to be dismissed with costs.
Learned counsel has also referred section 8(1) of Sindh Civil Service Act 1973 and Rule 9(1) of Civil Servant (Probation Confirmation and Seniority) Rule 1975.
After hearing the arguments of the learned counsel for the parties, it seems that the promotion of respondents Nos. 4 and 5, which has been agitated in this application was already on record before this Court when it passed judgment dated 06.01.2004 and that promotion has not been termed as illegal. It is also an issue, which has rightly been answered by Mr. Muhammad Sarwar Khan, Learned Additional Advocate General and Mr. Manzoor Ali Khan, learned counsel for the petitioner that in terms of section 8 (1) of SCS Act 1973 and Rule 9(1) of Civil Servant (Probation Confirmation and Seniority) Rule 1975, a separate list of different cadres has not been prohibited and that nothing specific has been pointed out by the learned counsel for the applicant to seek indulgence of this court for contempt action against the respondent. In the circumstances both these CMA have no force.
Both these CMAs were dismissed by a short order on 21.12.2005, and above are the reasons for the same.
J U D G E
J U D G E
Samie