ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P.
No.D-1285 of 2010
Date Order
with signature of Judge.
Present: Mr. Justice Faisal Arab
Mr. Justice Muhammad Ali Mazhar
Date of hearing 19.10.2010
Petitioner : Safdar Ali Sahito
Respondents : Province of Sindh and others.
Mr. Zamir Ghumro, Advocate for the petitioner.
Mr. Ali Asadullah Bullo, Advocate for respondents No.4 to 11.
Mr. Imtiaz Ali Soomro, AAG.
Muhammad Ali Mazhar,J. The petitioner has filed this constitutional petition for issuing writ of Quo Warranto against the respondents No.3 to 11 as according to him, they are not eligible for holding their present positions which is without any lawful authority and contravention of Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974.
1.The brief facts of the case are that the petitioner is a Social worker. It is alleged in the petition that the respondent No.3 is working as Executive District Officer (Finance) District Khairpur in a position of Grade-19 without any lawful authority as he is a Grade-18 officer of WAPDA and does not possess the required qualification for the post. The respondent No.4, though a Grade-20 officer but belongs to special cadre of Health Department but the post is reserved for administrative cadre. The respondent No.5 is EDO Community Development, Khairpur, a BPS-19 position but he is occupying the same without lawful authority being in Grade-18 without required experience. The respondents No.6 and 7 are Grade 17 and 18 officers but have been posted in Grade-19. So far as the respondent No.8 is concerned, he is a Grade-20, officer but he has been given additional charge of EDO, Education Khairpur, which is against the law. The respondent No.9 to 11 are also illegally holding Grade 19 positions but actually they are Grade 18 officers. The petitioner has prayed for writ of Quo Warranto with the directions against the respondents No.1 and 2 not to post any officer in Own Pay Scale and Grade in whole province and in case of non-availability of officers of relevant Grade, give acting charge to the most senior officers of the next Grade of the same cadre till promotions are made.
2.In response, the respondents No.4 to 11 filed their written reply in which it was, inter alia, contended that respondent No.3 has already been transferred, therefore, he cannot be dragged into such proceedings. Respondent No.4 is an Executive District Officer (Health) Khairpur and his posting cannot be objected by the petitioner on the ground that there is no concept of specialist or administrative cadre for the position of EDO (Health). So far as respondent No.5 is concerned, it is stated in the reply that he is an employee of Federal Government, posted on deputation and serving as the Executive District Officer (Community Development), Khairpur. It is further stated that the respondent No.6 was already transferred prior to the filing of instant petition. Respondent No.7 belongs to the District Administration which has already been exempted in the Provincial Cabinet decision on the basis of which the petitioner has filed this petition. So far as respondent No.8 is concerned, he is already an officer of BPS-20 and holding charge of EDO Khairpur with the approval of lawful authority. It is further stated in the same reply that the respondent No.9 has already been transferred from the position as challenged in the instant petition and the respondent No.10 is one of senior most officers of the department and he is at the verge of promotion for the next higher Grade. The respondent No.11 is also one of the senior most officers of education department, who is very efficiently expediting the tasks and targets for the betterment of public.
3.We have heard the learned counsels for the parties and also perused the record. The learned counsel for the petitioner argued that the terms and conditions of services of the respondents No.3 to 11 are regulated under the Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974. While placing them in the present positions, the respondents No.1 and 2 have blatantly ignored the express provisions of law and they have been illegally posted on their present positions without having required eligibility. The learned counsel for the petitioner relied upon a letter dated 22.04.2009 (available at page 25 of the Court file), issued by Government of Sindh, Service, General Administration and Coordination Department to the Additional Chief Secretary, Planning & Development Department, Government of Sindh, the Senior Member, Board of Revenue, Sindh, the Chairman Enquiries & Anticorruption Establishment, Government of Sindh, the Chairman, Chief Minister’s Inspection, Enquiries & Implementation Team, all the Administrative Secretaries, Government of Sindh and all the District Coordination Officers in Sindh in which it was intimated that the Provincial Cabinet in its meeting held on 29.04.2008 had unanimously decided to cancel the postings on OPS basis. In the concluding paragraph, it was also mentioned that all the concerned are, therefore, directed to adhere to Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis. For the convenience and ready reference, the letter dated 22.04.2009 is reproduced as under:-
“No.SOI/S&GAD/6/25/2009
GOVERNMENT OF SINDH
SERVICES, GENERAL ADMINISTRATION
AND COORDINATION DEPARTMENT
Karachi, dated 22nd April, 2009
1. The Additional Chief Secretary (Dev),
Planning & Development Department,
Government of Sindh,
Karachi.
2. The Senior Member,
Board of Revenue, Sindh,
Karachi.
3. The Chairman,
Enquiries & Anticorruption Establishment,
Karachi.
4. The Chairman,
Chief Minister’s Inspection, Enquiries &
Implementation Team,
Karachi.
5. The Administrative Secretaries (All)
Government of Sindh.
6. The District Coordination Officer (All)
In Sindh.
SUBJECT: POSTING OF OFFICERS ON OPS BASIS
I am directed to refer to the subject noted above and to state that Provincial Cabinet in its meeting held on 29.04.2008 had unanimously decided to cancel the postings on OPS basis. Only two departments were exempted from the ban i.e. District Administration and Police. Accordingly, all the Administrative Departments were requested to revert the officers to their original posts.
2.However, it has been noted with serious concern that the directives of the Chief Minister Sindh have fallen on deaf ears, as some departments are still continuing with such practice in utter disregard of Cabinet decision. As such, Competent Authority has desired that these postings should be stopped forthwith. Any deviation from Government orders will be viewed seriously and tantamount to defy the orders of the Authority.
3.All the concerned are, therefore, directed to adhere to Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis, so that consolidated report in this regard may be furnished to the Chief Minister Sindh for his perusal/orders as desired by him.
Sd/-22.4.09
(MEMONA SHAH)
SECTION OFFICER-I
A copy is forwarded for information to:-
1. The Secretary to Chief Minister, Sindh Karachi with reference to Note for Chief Minister Sindh vide diary No.1255 dated 18.04.2009.
2. The Deputy Secretary (Staff) to Chief Secretary Sindh, Karachi”.
4.The learned counsel further referred to another letter available at page 27 of the Court file dated 12/05/2008. This letter was written by Deputy Secretary (Services), Government of Sindh, Services General Administration & Coordination Department (Services Wing) to all the Administrative Secretaries, Government of Sindh, Karachi in which it was stated that various officers/officials have been posted against the higher post on OPS/officiating basis and in compliance of the decision of the Provincial Cabinet, it was required to take appropriate action regarding the officials by reverting them to their original post. For the convenience and ready reference, the letter dated 12.05.2008 is also reproduced as under:-
“NO.PA/DS/(S) S&GAD/08
GOVERNMENT OF SINDH
SERVICES, GENERAL ADMINISTRATION &
COORDINATION DEPARTMENT
(SERVICES WING)
Karachi, dated 12th May, 2008
The Administrative Secretary (all),
Govt. of Sindh,
Karachi.
Subject: DECISION OF PROVINCIAL CABINET IN CONTEXT OF
REVERSION OF OFFICERS/OFFICIALS WORKING AGAINST HIGHER POSTS TO THEIR ORIGINAL POSTS.
I am directed to refer to the subject matter cited above and to highlight that various officers/ officials have been posted against the higher post in your department on OPS/ officiating basis.
2.In compliance of the decision of the Provincial Cabinet, AD is requested to take appropriate action regarding the officials under its respective control by reverting them to their original post and communicate the names of those officials that are controlled by SGA &CD to the services wing for their reversion as per their respective basic pay scale.
3.In the meantime to cater with the situation, additional charge may be given to the officer of same grade till the posting of the appropriate officer to the respective post.
Sd/-
(ASIF IKRAM)
DEPUTY SECRETARY (SERVICES)
C.C. to
P.S. to Chief Secretary Sindh, Karachi.
P.S. to Secretary (Services),
S&GAD Karachi”.
5.The learned counsel for the petitioner in addition to the above also relied upon Rule 6-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, which provides that for the purpose of selection for appointment by promotion or transfer to posts in Basic Scale 18 carrying special pay, and above and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board consisting of not less than three members. One of whom shall be nominated as Chairman. The proviso attached to the above rule stipulates that Selection Board headed by the Chief Minister shall make selection for appointment by promotion or transfer to posts in Basic Scale 20 or above. Rule 6-A of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, is reproduced as under:-
6-A. For the purpose of selection for appointment by promotion or transfer to posts in Basic Scale 18 carrying special pay, and above and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board consisting of not less than three members. One of whom shall be nominated as Chairman.
Provided that the Selection Board headed by the Chief Minister shall make selection for appointment by promotion or transfer to posts in Basic Scale 20 or above.
6.The learned counsel laid much emphasis that no appointment, promotion or transfer can be made in violation of Rule 6-A but the respondents No.3 to 11 have been unlawfully posted in different positions, cadres and grades. In the same sequence, the learned counsel further relied upon Rule 9 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, which provides that appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic scale in which the post to be filled exists with the exception in sub-rule (2) that except as otherwise provided in any law for the time being in force, transfers of civil servants of various Basic Scales mentioned in column 2 of the table shall be ordered or notified by the authorities respectively mentioned in column 3 and in the manner indicated in column 4 of that table. Rule 9 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 is reproduced as under:-
9.(1) Appointment by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic scale in which the post to be filled exists.
(2) Except as otherwise provided in any law for the time being in force, transfers of civil servants of various Basic Scales mentioned in column 2 of the table below shall be ordered or notified by the authorities respectively mentioned in column 3 and in the manner indicated in column 4 of that table.
7.In support of his arguments, the learned counsel for the petitioner relied upon the following case law:-
1. PLD 2007 Supreme Court 52 (Hafiz Hamdullah versus Saifullah Khan and others). In this case, the hon’ble supreme court held that writ of quo warranto is in the nature of laying an information before a court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding and enquiry to enable him to show the authority under which he supported his claim of right to the 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 whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto, the Court would be under an obligation to inquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office. For issuance of a writ of quo warranto, the person invoking the jurisdiction of high court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move high court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke constitutional jurisdiction under Article 199 of the Constitution.
2. 2008 PLC (C.S.) 659 (Dr. Shagufta Shahjehan versus Government of Punjab). In this matter, the learned single judge of Lahore high court discussed the requisite qualifications for the appointment of Director General Environmental Protection Department, Punjab and held that respondent No.2 neither possesses the requisite qualification nor the experience and his appointment was made in relaxation of service rules. In this matter, the respondent took up plea of laches but the learned single judge held that respondent No.2 was appointed in the public office in violation of rules and policies. The appointment of ineligible person and his holding public office, without requisite qualification do not attract application of principles of laches to the case in hand.
3. 2005 PLC (C.S.) 997 (Mahmood Akhtar versus Syed Hassan Mujtaba Jaffri). In this case, the hon’ble supreme Court of Azad Jammu & Kashmir held that petitioner invoking jurisdiction of high court must satisfy that the office in question was a public office and held by respondent without legal authority. Writ of quo warranto would be issued if it is established to the satisfaction of the court that holder of office was not legally qualified to hold or to remain in the office or some statutory provisions had been violated in making the appointment and his title to office was without any legal warrant or authority. Writ of quo warranto would not be issued unless a clear violation of law or any other rule, having the force of law, was shown to have been committed in the appointment.
4. 2001 CLC 1579 (Abdul Bashir versus Government of Balochistan). In this matter, the divisional bench of Balochistan high court has decided the case relying upon the judgment of hon’ble supreme court reported in PLD 1963 S.C. 203 in which the hon’ble supreme court quoted the Halsbury’s Laws of England and observed that referring again to the monograph on Crown proceedings in volume 11 of Halsbury’s Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who claimed or usurped an office, franchise or liberty and was intended to enquiry by what authority he supported his claim in order that the right to the office may be determined. It was necessary for the issue of writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. In the same case, the hon’ble supreme court further observed that it is well settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question.
5. SBLR 2010 Sindh 1433 (Lal Khan versus Employee Old Age Benefit Institution & others). In this matter, the learned divisional bench of this court in number of petitions held that Section 10 of the Sindh Civil Servants Act, 1973 related to posting and transfer which provided that a civil servant shall be liable to serve anywhere within or outside the Province in any post in the Federal Government or Provincial Government or Local Authority or Corporation or Bodies set up or established by any such Government. It appears that Sindh Government could exercise such powers with regard to civil servants only but it cannot change the cadre of a civil servant or absorb/induct him in another department by changing his cadre. It is further held in the same judgment that the deputationist have no vested right to remain on their respective posts forever or for a stipulated period and they could be repatriated back to their parent department at any time. It was further held that by inducting outsiders in various departments of Government of Sindh, civil servants who were already serving in their respective departments after qualifying departmental examination and/or going through selection process have been adversely affected and their reasonable expectation vis-à-vis their promotion, seniority etc. had been snatched away in that fashion.
8.The learned counsel for the petitioner concluded his arguments that in view of the letter dated 22.04.2009, the respondents have been unlawfully posted in their present positions and their posting is not only against the Provincial Cabinet decision but also against the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 therefore a writ of quo warranto may be issued against them and their posting on the basis of additional charge and OPS may be declared to have been made without any lawful authority.
9.The learned counsel for the respondents No.4 to 11 in rebuttal argued that the petitioner has filed this petition for issuance of writ of quo warranto against the routine transfer and posting matter. The learned counsel argued that Rules 6-A and 9 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 are not applicable in this case as the respondents were not appointed but posted through the procedure prescribed and followed by the concerned departments without any deviation or departure from the normal procedure.
10.The learned counsel further argued that the petition is hit by the doctrine of laches. The learned counsel further invited our attention to annexure ‘A’ to the petition, which is Cabinet decision relating to posting of officers on OPS basis and argued that the said restriction of the Cabinet was confined and had binding effect at that relevant time when ban was imposed upon such posting and the Cabinet decision is not binding on future OPS posting. The postings of current respondents have been made after the cancellation of posting orders, which were implemented through such decision of the Provincial Cabinet, therefore the decision of Provincial Cabinet is not applicable for future OPS in order to fill the position on stop gap arrangements due to dearth of officer of requisite grade and experience and till the officers become available to be permanently posted.
11.In support of his arguments, the learned counsel for the respondents No.4 to 11 relied upon the following case law:-
1. 2003 PLC (C.S.) 1105 (Muhammad Yasin Saqib versus Chairman, Pakistan Telecommunication Corporation, Islamabad). In this matter, the learned single judge of the Lahore high court held that petitioner had failed to show any reason that why he did not challenge formation of Committee and promotion soon after passing orders in that respect. Writ filed by the petitioner was hit by laches. It was further held that if the petitioner had any grievance, could file representation against the said promotion and in case of dismissal of his representation, he could approach the Service Tribunal. Writ of quo warranto, otherwise could not be issued as petitioner himself was party.
2. 2003 PTD 2241 (Pakistan Industrial Development Corporation (Pvt) Ltd. Versus Federation of Pakistan). In this matter, the learned divisional bench of this Court while discussing the doctrine of laches held that inordinate delay in filing Constitutional Petition, which had gone unexplained, and reasons advanced being without any weight and substance, would be a stumbling block to the maintainability of constitutional petition.
3. PLD 1973 Peshawar 143 (Islamic Republic of Pakistan versus The Settlement Commissioner, Peshawar Division, Peshawar). In this case, the learned single judge of the Peshawar high court observed that for six long years, the petitioners have acquiesced the impugned order and paid rent of the disputed bungalow first to transferee and then to subsequent transferee and by this conduct they gave a tacit assurance to the latter that they had reconciled themselves with the decision of the Settlement Commissioner and consequently enabled him to obtain PTD. In this view, the petitioners would appear to have disentitled themselves to any discretionary relief even if their contention is accepted and the order of the Settlement Commissioner is held to be without jurisdiction.
4. NLR 1987 Civil 725 (Mubarak Ali versus The Chairman, Union Council, etc.). In this case, the learned single judge of Lahore High Court had dismissed the petition on the ground of laches as the writ petition was filed after a period of one year upholding the order of Chairman Arbitration Council.
5. PLD 2003 Peshawar 203 (Rizwanullah versus Registrar/ President, Cooperative Societies, N.W.F.P. Peshawar). In this case, the learned divisional bench of Peshawar high court took up the matter of laches and held that equity helps the wakeful, not the slumbering. Laches signify laziness in pursuing a legal remedy. There is no cavil to the proposition that the writ petition even against a void order, can be dismissed on the ground of laches but this rule cannot be applied in every case as a mandatory rule.
6. PLD 1986 Lahore 310 (Sardar Asseff Ahmad Ali versus Mr. Muhammad Khan Junejo). In this case, the learned divisional bench of Lahore high court relying upon earlier judgment of the hon’ble supreme court of Pakistan reported in PLD 1969 SC 42 held that grant of relief in writ jurisdiction is a matter of discretion and it was quite legitimate on the part of the High Court to test bona fide of the relator to see if he has come with clean hand. A writ in the nature of quo warranto in particular is not to issue as a matter of course, on sheer technicalities on a doctrinaire approach.
7. 2003 YLR 435 (Mashhadi Welfare Association versus Government of Punjab). In this case, the learned single judge of Lahore high court held that it is settled principle of law that our Constitution is based on trichotomy and this Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of the policy maker. In fact the petitioners challenged the polices of the respondent/Government, therefore writ petitions are not maintainable in view of the law laid down by the honorable supreme court in Zameer Ahmad’s case (PLD 1975 SC 667). It is pertinent to point out by us that the judgment of hon’ble supreme court in the case of Zameer Ahmed was related to Exports (Control) Act, 1950 read with Import Policy Order 1972 in connection with license for import of cinematograph films only.
12.Mr. Imtiaz Ali Soomro, the learned Assistant Advocate General Sindh argued that the respondents had been rightly placed and there is no illegality, infirmity or violation of law. He further argued that the petitioner has no right and authority to file this petition and he further stated that the petition is hit by laches, therefore it is liable to be dismissed. When we confronted him with the letter dated 22.04.2009 in which the Section Officer-I of Government of Sindh, Services, General Administration and Coordination Department intimated to various persons for the reversion of the officers to their original post who were performing their duties on OPS basis, the learned AAG concedes to the letter but he submits that the above letter does not restrict the respondents No.1 and 2 for future posting on OPS basis and he further argued that posting on OPS basis is temporary and stop gap arrangement only.
13.After hearing the arguments of the learned counsel, we have reached to the conclusion that there is no cavil to the proposition that a writ of quo warranto is in the nature of laying an information before a Court against a person who claimed and usurped an 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 whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Since the petitioner has prayed for a writ of quo warranto, therefore this Court is under obligation to inquire whether the incumbent is holding the office under the orders of a competent authority.
14.It is also well settled principle that for issuance of a writ of quo warranto, the person invoking the jurisdiction under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move high court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi. We are also fortified by the judgment of the hon’ble supreme court reported in PLD 2007 SC 52 in which it is clearly held that the writ of quo warranto can be instituted by a person though he may not come within the meaning of words ‘‘aggrieved person’’.
15.So far as the question of laches is concerned, we are not impressed with the arguments of the learned counsel for the respondents as in this case the petitioner has not assailed the validity of any order passed by any Court of law or tribunal but for the purposes of good governance, transparency and in the larger public interest, he has filed this Constitutional Petition in which he has no personal interest but he has moved this Constitutional Petition in the capacity of citizen of Pakistan for nullifying and undoing wrong action on the part of the respondents. The restriction that person applying for issuance of writ should be aggrieved person does not apply for a writ of quo warranto. Laches alone would not be sufficient ground to dismiss the Constitutional Petition unless equity leans in favour of contesting respondents. The question of laches is to be examined on equitable principle with reference to the facts of each case. Plea of laches is only available to a respondent who acted bona fide under the belief that what he was doing was legal and proper and not to a respondent who knew from the very inception that what he was doing was contrary to law.
16.We do not find that in the present circumstances where the petitioner has only questioned the posting and transfer of the respondents No.3 to 11 and also relied upon Government’s own instructions passed against OPS posting with further direction to revert back to all incumbent to their original post, this petition is hit by laches. The case law relied upon by the learned counsel for the petitioner relating to guiding principle for issuing writ of quo warranto are quite applicable in the present facts and circumstances of the case while the case law referred to by the learned counsel for the respondent No.3 to 11 relating to writ of quo warranto and doctrine of latches are distinguishable.
17.In the judgment reported in SBLR 2010 Sindh 1433, the divisional bench of this court disposed of number of petitions pertaining to the posting on deputation and the repatriation of deputationist to their parent departments. Some of the petitioners had challenged their repatriation to their parent department while some of the petitioners had challenged the postings on deputation and being fortified by the decision rendered by the hon’ble supreme court in Dr.Shafi-ur-Rehman Afridi’s case reported in 2010 SCMR 378, the learned divisional bench of this court held that the deputationist have no vested right to complete their deputation period nor they can call in question the notification of their repatriation. It was also held that by posting outsiders on the basis of deputation in various departments of Government of Sindh and by changing the cadres of the civil servants and inducting/absorbing them in various departments of the Government of Sindh, the respondents have created unrest and sense of deprivation amongst the employees already working there, therefore such practice is against justice, equity and good governance. In fact, in this matter the core issue was related to posting on deputation and their repatriation but the question of posting on OPS was not directly involved. However, keeping in view Section 10 of the Sindh Civil Servants Act, 1973, it was further held that from a plain reading of aforesaid section, it appears that the Sindh Government can exercise such powers with regard to civil servants only. However, under the above said section, the Government/Authority has no power to change the cadre of a civil servant nor civil servant can he absorbed or inducted in another cadre, hence, it was held that the Authority/Government cannot change the cadre of a civil servant or absorb/induct him in another department by changing his cadre.
18.Now we will take up the case of respondents No.3 to 11 on case to case basis as follows:-
Respondent No.3.
According to the petitioner, the respondent No.3 is unlawfully assuming the Grade-19 position of EDO (Finance) despite the fact that he is a Grade-18 officer of WAPDA. The learned counsel for the petitioner argued that he has already been repatriated by Sindh Government to his parent department of WAPDA. Since, the repatriation order has already passed and affirmed by the learned divisional bench of this court in another petition, there is no need to pass any further order against the respondent No.3 in this petition.
Respondent No.4
The learned counsel for the petitioner stated that respondent No.4 is unlawfully occupying the position of EDO (Health), which is a post reserved for general cadre. He further argued that before the inception of District Government under Sindh Local Government Ordinance, 2001, the nomenclature of Grade-20 position in Health Department was Director Health which has been replaced with EDO (Health) at district level. The learned counsel for the respondents argued that respondent No.4 is a Grade-20 officer of Health Department and he is currently posted as EDO (Health) Khairpur and there is no concept under the law that the position of EDO (Health) within the domain of district government setup should only be held by an officer belonging to general cadre and the respondent No.4 is a Grade-20 officer of the Health Department and has been rightly posted on the above mentioned position. The learned counsel for the petitioner has not placed anything on record to substantiate the plea that the nomenclature of Grade-20 position in Health Department was Director General Health which has been replaced with EDO (Health) at district level. The post is reserved only for Grade-20 officer belonging to Health Department and since the respondent No.4 belongs to the Health Department, therefore there is no illegality apparent on the face of the record, therefore we are not inclined to pass any orders against the posting of respondent No.4 in this petition. However, the respondent No.2 is directed to examine the case in the light of relevant nomenclature of position and if the contention of the learned counsel for the petitioner is correct, then appropriate measures should be taken within a period of two months.
Respondent No.5.
Respondent No.5 is an employee of Federal Government, who is posted on deputation and serving as EDO (Community Development), Khairpur. According to the petitioner, the respondent No.5 is illegally and unlawfully occupying the position of EDO (Community Development). The post is reserved for promotion or transfer from the officers of Provincial Government and cannot be filled in by way of deputation. In response, the learned counsel for the respondents argued that the respondent No.5 is an employee of Federal Government posed on deputation. He is an officer of BPS-18 but post belongs to BPS-19. In order to justify the deputation, the learned counsel relied upon Section 10 of the Sindh Civil Servants Act, 1973, which provides that every civil servant shall be liable to serve anywhere within or outside the province in any post under Federal Government, or Provincial Government or local authority or corporation or body setup or established by any such government. Since the divisional bench of this Court has already decided that under Section 10, the Government could exercise powers with regard to civil servants only but under this Section the Government/Authority could not change cadre of civil servant nor absorb/induct him in any department by changing his cadre. Keeping in view the aforesaid judgment, we hold that posting of respondent No.5 on deputation is not lawful. He is admittedly a Grade-18 officer but the post on which he has been posted belongs to BPS-19. Since it has already been held by the learned divisional bench of this Court (supra) that by posting outsiders on the basis of deputation in various departments of Sindh Government and by changing the cadres of the civil servants and inducting/absorbing them in various departments of the Government of Sindh, the respondents have created unrest and sense of deprivation amongst the employees already working there, therefore this practice is against justice, equity and good governance. Keeping in view the aforesaid judgment, the respondents No.1 and 2 are directed to repatriate respondent No.5 to his parent department within two months and fill the vacancy in accordance with the Sindh Civil Servants Act, 1973 read with Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974.
Respondent No.6.
The learned counsel for the petitioner argued that the respondent No.6 is illegally occupying the Grade-19 position of EDO (Information Technology) being a Grade-18 officer in violation of law. The learned counsel for the respondents argued that the respondent No.6 was already transferred prior to the filing of the instant petition, therefore we need not to pass any order against the respondent No.6’s posting in the instant petition.
Respondent No.7.
The learned counsel for the petitioner argued that the respondent No.7 is illegally occupying Grade-19 position of EDO (Revenue) being a Grade-18 officer in violation of law. In rebuttal, the learned counsel for the respondents argued that the respondent No.7 has been posted on stopgap arrangement as there is no other Revenue Officer available for filling the post. Since it is an admitted position that the respondent No.7 is enjoying posting on stopgap arrangement, therefore the respondents No.1 and 2 are directed to fill the vacancy in accordance with law within a period of two months, failing which the posting of respondent No.7 on OPS basis being a stopgap arrangement will be deemed to have been made without lawful authority and he will be repatriated to his original position.
Respondent No.8.
The learned counsel for the petitioner argued that respondent No.8 is illegally holding the position of EDO (Education) Khairpur in violation of the order passed by this Court in C.P.No.D-221/2010 (Sukkur Bench), whereby the respondents were directed to appoint permanent officer on the said position. In response to this, the learned counsel for the respondents argued that the respondent No.8 is an officer of BPS-20 and he is holding the charge with the approval of competent authority and until and unless the suitable officer is available, acting charge of that vacant post may be entrusted. It is correct to note that in C.P.No.D-221/2010 filed by Munawar Ali Pathan against the Province of Sindh, Secretary Education and Amanullah Bhayo, this Court has reserved the judgment, however the respondent No.3, who was working as EDO (Education) Khairpur was restrained from performing the financial/money matters or administrative powers for hiring and firing of employees. Simultaneously, the learned Additional Advocate General in the above petition was directed to ask the competent authority to take immediate steps for appointing a permanent incumbent to this post in accordance with law. Since the respondent No.8 is working as EDO (Education) Khairpur on the same position on which Amanullah Bhayo was performing his duties and this court has already directed the learned Additional Advocate General to ask the competent authority to take immediate steps for appointing a permanent incumbent, therefore, we have no reasons to disagree or differ with the finding of the earlier decision of the learned divisional bench of this court and the respondents No.1 and 2 are once again directed to take necessary steps for appointing a permanent incumbent to the post of EDO (Education), Khairpur within a period of one month, failing which the posting of respondent No.8 on the basis of acting charge/OPS shall be deemed to have been made without lawful authority and he will be repatriated to his original position.
Respondent No.9.
The learned counsel for the petitioner argued that the respondent No.9 is holding Grade-19 position as District Officer (Education), (DOE Elementary) while he is Grade-18 officer. In response to this, the learned counsel for the respondents argued that respondent No.9 has already been transferred from the position as challenged in the instant petition. After this categorical statement of the learned counsel for the respondents, there is no need to pass any order against respondent No.9 in this petition.
Respondent No.10
The learned counsel for the petitioner argued that the respondent No.10 is unlawfully holding a Grade-19 position of District Officer (Education), (DOE Academic and Training) while he is only a Grade-18 officer and cannot be posted to the position of Grade-19. In rebuttal, the learned counsel for the respondents argued that the respondent No.10 has been posted on stopgap arrangement on OPS basis. Since it is an admitted position that the respondent No.10 is enjoying posting on stopgap arrangement, therefore the respondents No.1 and 2 are directed to fill the vacancy in accordance with law within a period of two months, failing which the posting of respondent No.10 on OPS basis being a stopgap arrangement will be deemed to have been made without lawful authority and he will be repatriated to his original position.
Respondent No.11.
The learned counsel for the petitioner argued that respondent No.11 is holding the post of District Officer (Education), (DOE DEMIS), which is a post of Grade-19 but the respondents No.1 and 2 have posted respondent No.11, who is a Grade-18 officer, on this post. The learned counsel for the respondents replied that respondent No.11 has not been posted on OPS basis but he has been posted on the position of same Grade. In order to justify this plea, the learned counsel for the respondents has failed to produce any proper posting/transfer letter in this regard before this Court to show that his posting is not on OPS basis. He further contended that post of District Officer (Education), (DOE DEMIS) is purely an education-cum-technical post for which the respondent No.11 has the requisite qualification and experience. Since the petitioner has claimed that there are hundreds of Grade-19 education officers, who have been bypassed while posting respondent No.11 on this position, it is in violation and contravention of seniority list. The respondents No.1 and 2 are directed to see this aspect minutely and if the violation of seniority list is proved and the respondent No.11 is found to be on OPS basis, then the post will be filled up according to the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 within a period of two months.
19.At this juncture, we would like to rely upon a judgment reported in 1997 SCMR 1730, (Pakistan Railways v. Zafarullah) in which, the hon’ble supreme court observed as under:-
"Before parting with the cases, we would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the Rules for a short duration as a stop‑gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, 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 a copy of this judgment be sent to Establishment Division for future guidance."
20.The same view was also followed by a learned divisional bench of this Court in the case of Gul Muhammad Hajano versus Federation of Pakistan reported in (2000 PLC (C.S.) 46) and held that no doubt at times persons duly approved for promotion may not be available to fill vacant posts in a higher scale and the power to appoint a person in a lower scale by way of a stop‑gap arrangement, to prevent performance of public duties to a stand‑still, is available with the Government. At times persons possessing requisite experience to qualify for regular promotion may not be available in a department. However, all such exigencies are taken care of and regulated by statutory rules, Rule 8‑A of the Sindh Civil Servants (Appointment Promotion and Transfer) Rules, relates to appointments of civil servants on acting charge and current charge basis. It provides that when a post is required to be filled through promotion and the most senior civil servant eligible for promotion does not possess the specified length of service, appointments of eligible persons may be made on acting charge basis after obtaining approval of the appropriate departmental promotion committee/Selection Board. Sub‑Rule (4) of the aforesaid Rules provides that appointments on Acting charge basis shall be made for vacancies lasting for more than six months and for vacancies likely to last for less than six months appointments on current charge basis may be made. An appointment of an officer in a lower scale to a higher post on current basis in his own pay and scale without being formally promoted, therefore, by its very nature is only provided for as a stop‑gap arrangement and should not under any circumstances last for more than six months.
21.We would further like to refer the excerpt from the Human Rights Case No.8340-G of 2009 (quoted in 2010 SBLR Sindh 1433) in which, the hon’ble supreme court held that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to the bureaucracy. Civil service is the back bone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and Constitution, without favoritism or nepotism. It is a time tested recognized fact that institution is destroyed if promotions/appointments are made in violation of law.
22.From the letter dated 22.04.2009 (annexure ‘A’ page 25 of the file), it is clear that Government of Sindh has already discouraged the posting of officers on OPS basis keeping in view the Provincial Cabinet decision and also decided to cancel the posting on OPS basis with direction to adhere to the Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis so that consolidated report in this regard may be furnished to the Chief Minister Sindh for his perusal/ orders as desired by him. Though the learned counsel for the respondents has admitted that many of the respondents are on OPS basis and on acting charge basis, but he could not rebut or deny the letter mentioned above, however he simply argued that this letter/Cabinet decision was not effective for future OPS posting. The learned counsel has failed to produce any justification for making posting on OPS basis by the respondents No.1 and 2 as warranted in the letter dated 22nd April, 2009. When competent and senior officers are ignored for promotion and the authorities, after bypassing duly constituted promotion Committees/Selection Board arrogate to themselves, through the device of making current charges appointments the power to appoint junior officers to enjoy the supervisory authority and perquisites, element of arbitrariness is introduced which is not warranted by law.
23. The procedure for appointment, promotion and transfer is already provided under the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 read with Sindh Civil Servants Act, 1973. The Government in case of exigency may appoint the person on OPS basis on stopgap arrangement or current charge or acting charge or additional charge basis but it does not give any discretionary right or authority to violate the express provisions of law and relevant rules and continue the OPS or additional charge arrangement for unlimited period of time. If this tendency is encouraged, it will create much frustration in the other employees of same Grade and cadres and will also obstruct and hinder the right of promotion of the deserving employees. The good governance demands that efforts should be made to fill up the permanent vacant posts and vacancies within a reasonable period of time. Our constitutional and legal system attaches foremost importance to transparency and fairness in the administration of matters relating to appointment and career building of civil servants who are required to perform sensitive public duties strictly in accordance with law. There is no room for spoils system in our jurisprudence.
This petition along with C.M.A No.3449/2010 is disposed of in terms of directions contained in paragraph 18 of this judgment .
Judge
Sukkur:
Dated. 1.3.2011 Judge