Petitioner has filed this petition with the following prayer:

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D- 575 of 2009

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

J U D G M E N T

Date of hearing : 10.3.2010.

Petitioners through : Mr.Faiz Ghanghro, Advocate.

Respondents 1&2 through : Mr.Shafi Muhammad Memon, A.A.G.Sindh. Respondent No.3 through : Mr.Irfan Mir Halepota, Advocate.

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GULZAR AHMED, J.:- The petitioner has filed this petition with the following prayer:

A. Hold that the Impugned orders/Notifications dated 5^th May 2006 for posting of a non-eligible, non-qualified and junior incumbent to the Post of Director Laboratories/Chemical Examiner Karachi to be illegal, vide ab initio, holding the same is issued without any legal authority, and of no legal consequences and without jurisdiction.

B. Suspend the operations of the impugned orders dated 05-05-2006.

C. Respondent No. 1 be required to pass orders and initiate proceedings for filling up the vacant post of Director Laboratories/Chemical Examiner as per method of recruitment/appointment as notified in pursuance of Sindh Civil Servants (Appointments, Promotions and Transfers) Rules, 1974.

D. Any other or additional relief(s) which may be deem fit and proper in the circumstance of the case.

Brief facts of the matter are that petitioner is posted as Assistant Chemical Examiner under the Ministry of Health, Government of Sindh. He was promoted to BS-19 and subsequently obtained move-over to BS-20. Through notification dated 07.2.1998, post of Chemical Examiner/Senior Pathologist BS-19 was upgraded to BS-20 with redesignation of the post as Director Laboratories and Chief Chemical Examiner/Chief Pathologist. Through notification dated 05.5.2006, the respondent No.3, Senior Medical Officer BS-19, was posted until further orders as Director Laboratories in BS-20 at Karachi. It is alleged that this notification is in contravention of the provisions of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, (the Rules) inasmuch as the respondent No. 3 was not eligible to be posted as Director Laboratories (BS-20) as he did not meet the required qualification, experience and condition for the said post. Petitioner has alleged that he possessed requisite qualification and fulfilled the conditions for the post of Director Laboratories and Chemical Examiner (BS-20) and in this respect he has sent application to the competent authority for his regular posting and that the post is occupied by a non-qualified, non-experienced and junior incumbent, the respondent No. 3, on account of which petitioner is facing great hardship as his legal rights are superseded and terms and conditions of service are adversely affected.

The respondent Nos. 2 and 3 have separately filed their comments, in which the claim of the petitioner has been disputed. The respondents have further raised objections regarding maintainability of the petition on the grounds that it is barred under Article 212 of the Constitution and secondly it suffers from grave laches.

At the outset, the counsel for the petitioner has contended that petitioner seeks no relief for himself rather the petitioner only presses prayer No. 1 in the petition, which is in the nature of quo-warranto. Learned counsel for the petitioner has contended that respondent No.3 is a simple MBBS and does not possess a single day experience in the speciality of pathology and is not qualified to hold the post of Director Laboratories and Chemical Examiner (BS-20). He has further contended that appointment on acting charge basis of respondent No.3 for such a long period is contrary to law as the post is required to be filled in by a qualified person. He further contended that the very notification dated 05.5.2006 by which the respondent No.3 was posted as Director Laboratories/Chemical Examiner (BS-20) is illegal inasmuch as it is not a case of posting but of an appointment on acting charge basis and the Chief Secretary, who has issued this notification, was not competent authority to make such appointment. He further contended that for appointment on acting charge, obtaining of recommendations of Provincial Selection Board is mandatory, which has not been done in the present case. In support of his submissions he has relied upon the cases of AIJAZ MUSTAFA SAMTIO, ADVOCATE V/S GOVERNMENT OF SINDH & OTHERS (2002 PLC (CS) 117), ABDUL GHAFOOR, SUPERVISOR/ INSPECTOR, N.H.A. V/S NATIONAL HIGHWAY AUTHORITY & 12 OTHERS (2002 SCMR 574), Z.A. JAVED RAJA, ADMINISTRATIVE OFFICER, FEDERAL DIRECTORATE OF EDUCATION, ISLAMABAD V/S SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD & 3 OTHERS (1996 SCMR 329), Dr. MUNIR A. ABROO V/S FEDERATION OF PAKISTAN AND OTHERS (2000 PLC (CS) 231), PAKISTAN RAILWAY V/S ZAFAR AHMED (1997 SCMR 1730) and an order dated 30.3.2006 passed by Hon’ble Supreme Court of Pakistan in Constitutional Petition No. 679-K/2005.

On the other hand, counsel for respondent No.3 has contended that petition is barred under Article 212 of the Constitution as the matter relates to terms and conditions of service. He further contended that petitioner has not approached the Court with clean hands and petition is hopelessly barred by laches. He further contended that respondent No.3 possesses the requisite qualification for the post of Director Laboratories/Chemical Examiner (BS-20) and has requisite experience. He further contended that the case of respondent No.3 is not that of appointment on acting charge but is a case of simply transfer and posting, which is permissible under Section 4 of the Sindh Civil Servants Act, 1973. He, however, contended that no rules of transfer and posting and giving power to Chief Secretary to make such transfer and posting have so far been made. He conceded that the appointment of Director Laboratories/Chemical Examiner (BS-20) can only be made by the Chief Minister. He further conceded that there is no recommendation of Provincial Selection Board for appointment on acting charge. In support of his submissions he has relied upon the cases of JAHANGIR MIRZA, SENIOR SUPERINTENDENT OF POLICE, LAHORE and another V/S GOVERNMENT OF PAKISTAN, through Secretary, Establishment Division and others (PLD 1990 SC 1013), AYYAZ ANJUM V/S GOVERNMENT OF PUNJAB, HOUSING AND PHYSICIAL PLANNING DEPARTMENT through Secretary and others (1997 SCMR 169), Miss RUKHSANA IJAZ V/S SECRETARY, EDUCATION, PUNJAB and others (1997 SCMR 167), GHULAM ABBAS MUJAHID V/S EXECUTIVE DISTRICT OFFICER AGRICULTURE, MULTAN & 3 OTHERS (PLC 2008 (CS) 585) and PEER MUHAMMAD V/S GOVERNMENT OF BALOCHISTAN THROUGH CHIEF SECRETARY & OTHERS (2007 SCMR 54).

Learned A.A.G. contended that the case of respondent No.3 is not that of appointment on acting charge basis but it is a temporary arrangement and does not amount to promotion of respondent No.3 and that approval of Chief Minister has not been obtained so also there is no recommendations of Provincial Selection Board.

We have considered the submissions made by learned counsel and have gone through the record.

Petitioner’s counsel has first attacked the posting of respondent No. 3 as Director Laboratories/Chemical Examiner (BS-20) vide impugned notification on the ground that he does not possess the qualification to hold such post and in this respect has relied upon the Notification No. SOI (H)188/82 dated 31.5.1983 filed as annexure ‘F’ with the petition. This notification has laid down three qualifications, either one of which has to be possessed for being appointed as Chemical Examiner, which post was subsequently renamed as Director Laboratories and Chemical Examiner/Chief Pathologist (BS-20) through letter of the Health Department dated 07.2.1998. The Hon’ble Supreme Court in the case of Dr. AZIM‑UR‑REHMAN KHAN MEO V/S GOVERNMENT OF SINDH & ANOTHER (2004 SCMR 1299) and in the case of Dr. AHMAD SALMAN WARIS, ASSISTANT PROFESSOR, SERVICES HOSPITAL, LAHORE V/S Dr. NAEEM AKHTAR & 5 OTHERS (PLD 1997 SC 382) has held that the issue of qualification of a civil servant raised by another civil servant is a matter which relates to terms and conditions of service which is exclusively within the jurisdictional domain of the Service Tribunal and a petition under Article 199 of the Constitution will be barred. In view of this state of law as laid down by Hon’ble Supreme Court, this contention of the counsel for the petitioner fails and cannot be considered in this matter.

The next grievance of the petitioner is that respondent has been appointed as Director Laboratories/Chemical Examiner (BS-20) on acting charge basis on 05.5.2006 and has been holding such post since then and that the said post is required to be filled in by regular promotion and by not doing so the respondents are acting contrary to law. The petitioner counsel in this respect has relied upon the SL-121 of Esta Code, Edition 2000 and also on the case of Pakistan Railways (supra)

So far the question of applicability of Esta Code is concerned, the same incorporates the law, rules, regulations, notifications, orders issued by Federal Government and its ministries/departments and they mostly relate to the employees of Federal Government. In a way, what is contained in the Esta Code has no direct application to the employees of the Provincial Government, but it may be stated that some principles dealing with the terms and conditions of service of the employees of Provincial Government which are not specifically dealt with by the law, rules, regulations, notifications, orders made by the Provincial Government and its ministries/departments could be borrowed as guide for resolving the matter. Beyond this, in our view, the Esta Code will not apply to the terms and conditions of service of the employees of Provincial Government.

It may, however, be noted that there is no specific period laid down in the rules for holding of a post on acting charge basis but the Hon’ble Supreme Court in the case of Pakistan Railway relied upon by the counsel for the petitioner has observed that it is, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time.

As regards further arguments of learned counsel for the petitioner that the very notification by which the respondent No.3 was appointed on acting charge as Director Laboratories/Chemical Examiner (BS-20) is illegal, on the ground that it has not been issued by competent authority and is without the recommendation of Provincial Selection Board. For dealing with these arguments, it will be necessary to reproduce the very notification which is as follows:

“ NO.SOI(S&GAD)-2/4/06(H-87)

GOVERNMENT OF SINDH

SERVICE, GENERAL ADMINISTRATION

& COORDINATION DEPARTMENT

Karachi, dated 5^th May, 2006

NOTIFICATION

Dr. Fazal Illahi Memon, Senior Medical Officer (BS-19), awaiting posting, is posted with immediate effect and until further as Director Laboratories / Chemical Examiner (BS-20). C.B.Laboratory, Karachi, in his own pay and scale, against an existing vacancy.

Chief Secretary

Government of Sindh ”

The counsel for respondent No.3 has contended that there has been no appointment of the respondent No. 3 by this notification rather only transfer/posting order has been made and in this respect notification is issued by competent authority and is not illegal. He, however, relying upon the case of Jahangir Mirza (supra) contended that where the rules are not framed, the designated authority has power to make appointments.

The first question that needs to be considered in the present case is whether through notification, referred to above, the respondent No. 3 has merely been transferred/posted as Director Laboratories/Chemical Examiner (BS-20) or it is an appointment of acting charge.

Notification does not use the word transfer nor of acting charge but only that of ‘posted’. In this respect rules need to be examined. The Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 seems to be relevant. Rule 3 of these Rules provides that appointments to posts shall be made by promotion or transfer in accordance with Part-II of these rules and by initial appointment in accordance with Part-III of these Rules. Sub-rule (1) of Rule 9 appears in Part-II which deals with the case of transfer and it provides that appointment by transfer shall be made from amongst the persons holding appointments on regular basis in the same basic scale in which the post to be filled exists. The table given under Sub-rule (2) of Rule 9 lays down the competent authority to make transfer. Serial No. 10 of this table makes the Chief Secretary as competent authority to make transfer of officers holding post in BS-19. In terms of sub-rule (1) of Rule 9 transfer is required to be made from persons holding appointments on regular basis in the same basic scale in which the post to be filled exist. This means that respondent No.3 who holds appointment on regular basis in BS-19 could have been transferred by the Chief Secretary in the same basic scale i.e. of BS-19 and not in the higher post. The posting of respondent No.3 by the notification, therefore does not satisfy the condition of Sub-rule (1) of Rule 9 of the Rules and apparently it is not a case of a mere transfer/posting.

The respondent No.3 who is a BS-19 officer and was awaiting posting could have been posted in his own scale and not in higher scale as posting on higher scale is governed by separate rules. Rule 6A, 7 and 8 of Part-II of the rules lays down the method of appointment by promotion or transfer and these rules apparently deal with cases of regular appointment by promotion or transfer. Admittedly, the case of respondent No. 3 is not that of regular appointment by promotion or transfer. Rule 8A of the Rules is as follows:

8-A (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.

(2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post.

(3) In the case of a post in Basic Scale 17 and above, reserved under the rules to be filed by initial appointment, where the appointing authority is satisfied that no suitable officer of the grade in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service, as the case maybe, in excess of the promotion quota.

(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.

(5) Appointment on acting charge basis shall be made on the recommendation of the Departmental Promotion Committee or the Provincial Selection Board, I or II as the case may be.

(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority.

(7) Acting charge appointment shall not confer any vested right for regular promotion to the post or grade held on acting charge basis.

(8) The civil servant appointment on acting charge basis shall assume full duties and responsibility of the post.

(9) The civil servant appointed on acting charge basis shall be entitled to draw fixed pay equal to the minimum pay at which his pay would have been fixed had he been appointed to the post on regular basis.

Explanation:-- Service rendered on acting charge basis in the grade applicable to the post shall not count for purposes of drawl of increments in the basic scale. Such service shall, however, count towards increments in the basic scale held immediately before appointment on acting charge basis.

It is apparent from the record that respondent No.3 was a senior medical officer (BS-19) and was awaiting posting. Through impugned notification the respondent No. 3 was posted with immediate effect until further as Director Laboratories/Chemical Examiner (BS-20) and it is admitted before us both by counsel for the respondent No.3 as well as by learned A.A.G. that it is a temporary posting. Transfer/posting is an objective term used in service law and is mostly interdependent. When a transfer of civil servant is made, as further colalary it results into posting or awaiting posting. A transfer/posting can be made in the same department or in the different departments or to an ex-cadre post and even from one government to another government or to local authority or corporation or body set up by government. As discussed above, the case of respondent No.3 is not that of transfer/posting, rather the case of the respondent No. 3 seem to be that of appointment on acting charge basis as he has been posted to a higher post from the one which he was holding. Rule 8A as noted above will apply to the case of respondent No.3 and his appointment could only be made by appointing authority and that too on the recommendation of Departmental Selection Board or Provincial Selection Board as the case may be. Rule 4(1) provides the table in which the appointing authority has been designated serial No. 10 of which makes the Chief Minister as competent authority for appointment to the post in BS-19 and above.

Writ of quo warranto is in the nature of laying an information before a Court against a person who claim to hold public office, franchise or liberty requesting for holding an enquiry to enable him to show authority under which he supports his claim or right to public office, franchise or liberty. The object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide as to whether he is holding such office in accordance with law or is unauthorisedly occupying the public office. The Court would be under an obligation to enquire whether the incumbent is holding public office under the orders of competent authority and also to examine whether he would be legally qualified to hold the office and to remain in the same. Reference in this regard be made to the case of HAFIZ HAMDULLAH V/S SAIFULLAH KHAN & OTHERS (PLD 2007 SC 52).

In the case of PAKISTAN TOBACCO V/S TAHIR RAZA (2007 SCMR 97), the Hon’ble Supreme Court of Pakistan was dealing with the case of reemployment of Pakistan Tobacco Board Secretary after his retirement. The reemployment of the Secretary Pakistan Tobacco Board was made on the recommendation of the Chairman Pakistan Tobacco Board and it seems that such recommendation was approved by the Prime Minister. Rule 20 of Pakistan Tobacco Board (Service) Rules, 1985, however, specifically provided that reemployment after superannuation could be made with the approval of President of Pakistan. The Hon’ble Supreme Court by holding the President of Pakistan was the repository of discretion to make reemployment went on to observe at page 101 as follows:

“7. None of the other contentions of the learned counsel has any merit. In fact it was in reply to the constitutional petition that respondent No.2 (Ministry of Commerce) had taken the stand that appointment in question was approved by the Prime Minster. Therefore, the contention of the learned counsel that the learned High Court had been doing a roving inquiry in respect of the internal business of the Government is beyond our comprehension. The writ of quo warranto, which is of course, is now an obselete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office. It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to the said office. Therefore, keeping in view the nature of such proceedings the learned High Court can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record and this exercise can be done suo motu even if its attention is not drawn by the parties concerned.”

The Hon’ble Supreme Court, thus, maintained the issuance of writ of quo-warranto by the Lahore High Court.

Keeping in view the above principles as laid down by Hon’ble Supreme Court while dealing with the question of exercise of jurisdiction of issuing of writ of quo warranto it is apparent from the above discussion that appointing authority for appointing the respondent No.3 on acting charge as Director Laboratories/Chemical Examiner (BS-20) was the Chief Minister and not the Chief Secretary. Further sub-rule (5) of Rule 8A requires obtaining of recommendation of the Departmental Promotion Committee or Provincial Selection Board for making of such appointment. It was admitted that no such recommendation was made in the case of respondent No. 3. Thus, it is apparent that the appointment of respondent No. 3 on acting charge as Director Laboratories/Chemical Examiner (BS-20) through notification impugned in the petition was not made by the competent authority i.e. the Chief Minister nor there was any recommendation of Departmental Promotion Committee or Provincial Selection Board for such appointment.

The counsel for respondent No.3 has contended that where the rules are not framed the designated authority has power to make appointment and in this respect has relied upon the case of Jahangir Mirza (supra).

Upon perusal of this judgment it appears that Hon’ble Supreme Court while considering the provision of section 5 of Civil Servants Act, 1973 has observed that the President of Pakistan or the person authorized by the President has power to make appointments to all Pakistan service in the prescribed manner and the term prescribed implied as prescribed by the rules and in case the rules were not framed, the designated authority’s power to make appointments was neither curtailed nor postponed till framing of the rules. In the first place it may be noted that the counsel for the respondent No.3 has lost sight that Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 do exist dealing the case of appointment, transfer and promotion and that such rules also prescribe the manner of appointment, promotion and transfer and also designate the authority who is competent to make appointment, promotion and transfer. It is thus not a case where the rules may not have been framed. In any case the counsel for the petitioner has not even shown from the substantive law as to who was the designated authority for the posting or appointment of respondent No.3. The ratio of the case of Jahangir Mirza in our respectful view does not apply to the case in hand.

In the face of such finding, the further argument of the counsel of respondent No. 3 that petition is hit by laches will not be available as holding of office by respondent No.3 on the basis of impugned notification which is illegal, is a continuing cause of action against which no laches will operate. Further objection of counsel for respondent No.3 that the petitioner himself being a civil servant cannot maintain a petition of quo warranto, it may be noted that such argument may have some weight where the petitioner may be claiming relief for himself or raising his own grievance or having any personal grudge against respondent No.3 which is not so in the present case. Petitioner has simply laid information before the Court regarding the illegality of appointment of respondent No. 3 which aspect of the matter has been dealt with by us on the principles as laid down by Hon’ble Supreme Court.

The net result of above discussion is that the petition succeeds to the extent that impugned notification dated 05.5.2006 appointing respondent No.3 on acting charge as Director Laboratories/Chemical Examiner (BS-20) is declared to be without lawful authority of law and of no legal effect and same is quashed. The respondents are directed to appoint Director Laboratories/Chemical Examiner (BS-20) in accordance with law.

J U D G E