IN THE HIGH COURT OF SINDH (CIRCUIT COURT) AT HYDERABAD
C.P No.D-2069 of 2011
Ayaz Ali & others -------- Petitioners
Government of Sindh & others --------- Respondents
Date of hearing 23-04-2014
Petitioners: Through Mr. Sher Muhammad Baloch, Advocate.
Respondents: Through Mr. Allah Bachayo Soomro Additional A.G. Sindh.
MUHAMMAD JUNAID GHAFFAR, J. - Through instant petition the petitioners have sought the following relief(s): -
However, at the time of arguing the instant petition, the learned Counsel for the petitioners submitted that he will not be pressing the instant petition in respect of petitioners No.2 to 5 and will confine his submissions to the extent of petitioner No.1 and subsequently shall only be pressing prayer clause “B” as above.
2. Precisely the facts involved in the instant petition are that the father of the petitioner No.1 namely Ghulam Shabbir expired on 24-05-2002 during his service with respondent No.5 where he was working as a “Tube-Well Operator”. The petitioner No.1 had approached the respondent No.5 for appointment on the basis of deceased quota on 10-09-2002, however, such application was not responded to and the petitioner No.1 kept on pursuing the fate of such application from time to time. Thereafter, on 11-10-2008 the case of the petitioner No.1 along with several other similarly placed persons was forwarded by respondent No.3 to respondent No.2, wherein the request of such persons for appointment against deceased quota was forwarded for necessary action. The petitioner No.1 had also applied to respondent No.5 after vacancies of jobs were advertised somewhere in July, 2008 for the post of Tube-Well Operator. However, after allowing the petitioner to appear in the test no further progress was made by the respondents and the petitioner No.1 was left with no other choice but to file the instant petition and seek the prayer as above.
3. Mr. Sher Muhammad Baloch, learned Counsel appearing on behalf of petitioner No.1 contended that the petitioner No.1 is entitled to be appointed against deceased quota as other similarly placed persons whose names were also recommended by respondent No.3 to respondent No.2 in its letter dated 11-10-2008 have been appointed in service by the Respondent No.1, including but not limited to persons listed at serial No.6 and serial No.10, and such fact has also been admitted in the comments filed by respondent No.5 on 25-02-2014. Learned Counsel further contended that the objection so raised on behalf of the respondents on the basis of an amendment carried out in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (“1974 Rules”) in rule 11-A is firstly not applicable to the case of petitioner No.1, as the said amendment cannot be applied retrospectively as the petitioner No.1 before issuance of such notification had acquired vested rights and secondly for the fact that this issue has already been settled by a Division Bench of this Court vide its judgment dated 08-12-2012 passed in C.P No.D-647/2010. Learned Counsel in support of his submissions has also relied upon the case of Shafqat Ali v. Government of Sindh reported in 2010 PLC (C.S.) 536 and the case of Hafeezullah and another v. Province of Sindh reported in 2012 PLC (C.S.) 889.
4. Conversely, the learned Additional A.G. Sindh vehemently opposed the grant of instant petition and contended that the Government of Sindh through its Notification dated 17-07-2009 has prescribed a policy decision, whereby the deceased quota for their family members and sons is only available, if such application for appointment under the said quota is submitted within a period of two years from the date of expiry of the said Civil Servant and since in the instant matter the said application was submitted much beyond the period of two years, as such, the petitioner No.1 is not entitled to be appointed under the category of deceased quota. Learned AAG also contended that insofar as the case of persons listed at Serial Nos. 6 and 10 of letter dated 11.10.2008 is concerned, the same is not applicable to the case of the petitioner as the date of expiry of fathers of these two persons and the date of making such application for appointment under the deceased quota were within the prescribed time of 2 years in line with the Notification dated 17.07.2009. Learned AAG also contended that insofar as the appointment of Saeed Ahmed listed at Serial No.6 of letter dated 11.10.2008 is concerned the said appointment has been made on merits and not under the deceased quot.
5. We have heard the learned Counsel for the petitioner No.1 and the learned Additional A.G. Sindh and have perused the record as well as the case law relied upon on behalf of the petitioner.
6. Insofar as the facts that the father of petitioner No.1 was working as a tube well operator within the service of Respondent No.1 and had expired on 24.05.2002 is not in dispute. It is also not in dispute, barring the limitation period of 2 years for making such application for appointment under the category of deceased quota, that otherwise the petitioner No.1 is entitled to be appointed under the deceased quota. It appears that the only bone of contention between the parties is in fact that the application for appointment on deceased quota cannot be considered as it is beyond the period of cutoff date as notified in Notification dated 17.07.2009. The issue left to be decided by this Court in the instant petition is that as to whether, the petitioner No.1 is entitled to be appointed on the basis of deceased quota, as admittedly the deceased father of the petitioner No.1 was an employee working with respondent No.5. It is to be adjudicated that whether or not the period of two years as prescribed vide Notification dated 17.07.2009 and the cutoff date of 17.07.2007 is applicable on the case of petitioner No.1.
7. To have a better understanding of the controversy and to trace the history of this category of appointments under the “deceased quota” under the 1974 Rules, it would be advantageous to refer to the various amendments and office memorandums issued in this context by Respondent No. 1. Prior to 02.09.2002 there was no provision under the 1974 Rules for appointment under the deceased quota and for the first time an amendment in the 1974 Rules was made on 02-09-2002 in exercise of powers conferred under section 26 of the Sindh Civil Servants Act, 1973 (“1973 Act”) and the following new rule 11-A was added in the 1974 Rules after rule 11:-
“Where a civil servant dies while in service or is declared invalidated or incapacitated for further service one of his children shall be provided job on any of the pay scales No.1 to 10 in the Department in which the deceased civil servant was working without observance of the prescribed formalities, if such child is otherwise eligible for the post”.
Thereafter, Rule 11-A was substituted through Notification dated 11-03-2008 in the following manner: -
“Where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his children shall be provided job on any of the basic pay scales 1 to 15 in the Department where the deceased, declared invalidated or incapacitated civil servant was working without observing the prescribed formalities, if such child is otherwise eligible for the post in accordance with the recruitment rules”.
Subsequently, for the first time a cutoff date was prescribed through a letter dated 13-12-2008 (though no such cutoff date was prescribed in the 1974 Rules) issued by the Services, General Administration and Coordination Department (“S&GAD”) through its Section Officer, which is in the following manner: -
1. The Senior Member, Board of Revenue, Sindh, Hyderabad.
2. The Additional Chief Secretary (Dev.),P&D Deptt./Local Govt. Deptt. Karachi.
3. The Administrative Secretaries (All) Government of Sindh, Karachi.
4. The District Coordination Officers (All) in Sindh.
SUBJECT: - APPOINTMENT AGAINST DECEASED QUOTA.
I am directed to refer to the above subject and to say that the Competent Authority has been pleased to fix the cutoff date for appointment under deceased quota to the posts in BS-1 to 15 as 01-01-2000.
(NAZEER AHMED DHOON)
SECTION OFFICER (REG-I).”
Subsequently once again on 17-07-2009 Rule 11-A was substituted by another notification in the following manner: -
“11-A. Where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his children shall be provided job who applies within a period of two years of death, or declaration of invalidity or incapacity of civil servant, on any of the basic scales 1 to 15, in the Department where such civil servant was working; provided that such appointment shall be made after fulfillment of formalities as required in the recruitment rules and holding interview for the post applied for.”
Further provided that the cutoff date for appointment under the deceased quota to the posts in BS-01 to BS-15 will be 17th July 2007.
8. From the perusal of Rule 11-A and its subsequent amendments, as well as letter dated 13.12.2008 of S&GAD, it transpires that the policy of deceased quota was introduced for the first time in the year 2002 and at that point of time and till the year 2008 when the said rule 11-A was substituted, there was no restriction of any sort of time period for a person to apply for seeking the benefit under the deceased quota, who was otherwise entitled for such appointment. For the first time a cutoff date or restriction was introduced through a letter issued by the Section Officer S&GAD dated 13-12.2008 wherein it was stated that the competent authority has been pleased to fix the cutoff date for appointment under deceased quota to the posts in BS-01 to BS-15 as 01-01-2000. Subsequently on 17-07-2009, the said rule 11-A was once again substituted and for the first time the cutoff date was notified through the rule 11-A itself which was not available prior to it. However, the application of this cutoff date was somewhat being applied retrospectively, as the notification was issued on 17-07-2009 and the cutoff date mentioned in the notification was 17-07-2007 for making applications under the deceased quota. The case of the respondents is that the notification issued on 17-07-2009 is applicable on the case of petitioner No.1 and since the father of the petitioner No.1 had expired in 2002 therefore, is not covered by the cutoff date mentioned in the notification which is 17-07-2007. Therefore according to the learned AAG, the petitioner No.1 did not qualified for such benefit and was not entitled to be appointed under the deceased quota as the case of the petitioner No.1 is time barred and does not fulfills the criterion of cutoff date as specified in the Notification dated 17.07.2009. However, in our candid view this contention is not correct and cannot be appreciated by this Court, as the cutoff date restriction was neither in field when the petitioner No.1 for the first time applied for appointment, nor when the case of the petitioner No.1 was recommended for appointment by Respondent No 3 on 11.10.2008. In fact if the petitioner had been appointed without creating hindrance and delay, then no such controversy would have crept in as at that point of time there was no issue of any cutoff date. In somewhat identical situation the Respondent No.1 had taken the same stance in respect of another petitioner and this Court vide its order dated 08-12-2010 in the case of Zafar Ali Kalhoro v. Government of Sindh in C.P No.D-647/2010 has already dealt with such objection raised on behalf of respondents and has observed as follows: -
“This issue has already been decided by us on 25-11-2010 in C.P No.D-830/09 after hearing the Secretary, Education Department, and Government of Sindh.
The learned Additional Advocate General Sindh states that the matter pertains to Irrigation Department and not to the Education Department and therefore, there is no deceased quota in Irrigation Department.
With profound respects, the law applies to all the departments and the deceased quota is available with the Government and not with the individual department. We, therefore, in view of our order passed in the aforesaid petition allow this petition directing the Competent Authority/Respondent No.3 to extend the benefit of deceased quota to the petitioner in whose favor the right has been created prior to 17-07-2007 and the refusal on the basis of the amendment made in the Civil Servants Act would not govern the case of the petitioner.
This petition is allowed in the above terms. The listed application also stands disposed of.”
9. In the said petition the father of the petitioner had expired on 30-05-2004 and the petitioner had made an application to avail the deceased quota on 16-06-2004 and by the time the case of the petitioner was being finalized, the notification dated 17-07-2009 had come into operation and the case of the petitioner was regretted simply on the ground that it does not fall within the period of two years cutoff date i.e. the said quota was only available to those persons whose father had expired while in service from 17-07-2007 onwards and not before that. The learned Division Bench vide its order as referred above, came to the conclusion that since the petitioner had acquired a vested right and therefore, the notification issued on 17-07-2009 with a cutoff date of 17-07-2007 cannot be applied retrospectively. Similarly another learned Division Bench of this Court in the case of Shafqat Ali (supra) in a similar and identical case has held as under: -
“The petitioner applied for the post of JST as his late father was Headmaster in Government School before his death somewhere in 1986. However, as pointed out by the learned A.A.G. that during this period a new Notification dated 17th July, 2009 came into force which amended 11-A to provide that the application will be made within two years of the death of such civil servant and it further provided that the date for appointment under deceased quota will be 17th July, 2007. Since we are of the considered opinion that this Notification issued after filing of the application by the petitioner cannot be interpreted to apply retrospectively to the application which has been filed before coming into force of this Notification therefore, we will at this moment not going into the legality or otherwise of this Notification which will be considered in some other appropriate case. Learned Counsel has pointed out that despite the fact that all the officers of the Education Department had proposed that he be appointed as JST and summary in this regard was sent to the Honourable Chief Minister which had already been approved by the senior Minister, Education but the Honourable Chief Minister has without giving any reason whatsoever sated that the summary is not in line with the policy and has regretted appointment of the petitioner.
After examining the above summary and the reasons given by the Honourable Chief Minister, we are of the considered opinion that the regret made by the Honorable Chief Minister without explaining why it is not in line with the policy is another which cannot be sustained.
We therefore allow this petition, cancel the order on summary passed by the Honorable Chief Minister and direct the respondents to appoint the petitioner as JST, if he possesses basis qualifications necessary for such appointment within 30 days of this order”. (Emphasis supplied)
Subsequently another learned Division Bench of this Court in the case of Hafeezullah (supra) has followed the case of Shafqat Ali (Supra) and had allowed the petition on the same grounds.
10. It must be appreciated that in fact the case of the petitioner No.1 does not fall under the Notification dated 17.07.2009 and is more appropriately governed by the Notifications dated 02-09-2002 and 11.03.2008 read with letter dated 13.12.2008 issued by S&GAD, as at the relevant time when the matter of appointment of petitioner No.1 was being considered and recommended by respondent No.3 vide its letter dated 11.10.2008, the condition of a cutoff date was neither mentioned in the Notifications dated 02.09.2002 and 11.03.2008. In fact it was circulated by letter dated 13.12.2008 by S&GAD that the competent authority has been pleased to fix the cutoff date for appointment under the deceased quota as 01.01.2000. This again was in favor of the petitioner and should have been applied in the case of petitioner No.1, but apparently when the appointment was being finally considered on the recommendation of respondent No.3, another Notification dated 17.07.2009 had been issued which provided the cutoff date as 17.07.2007 and the benefit of deceased quota was made applicable to applicants whose father had expired on or after 17.07.2007. However, since the delay in appointment cannot be attributed to the petitioner No.1, as such the notification dated 17-07-2009 being adversely affecting the petitioner No.1 cannot be applied retrospectively, as prior to issuance of such Notification; the petitioner No.1 had already acquired a vested right and was entitled to be governed by the Notifications dated 02-09-2002 and 11-03-2008 read with letter dated 13.12.2008 issued by S&GAD. On the basis of these observations, the petitioner No.1 is entitled to be appointed under the deceased quota, after fulfillment of requisite codal formalities as otherwise required under the said policy.
11. In view of hereinabove, we were of the view that the petitioner had made out a case for grant of relief as prayed in clause “B” and therefore, by means of short order dated 23-04-2014, we had allowed the present petition to the extent of petitioner No.1 as above and dismissed the petition as not pressed in respect of respondents No.2 to 5. The above are the reasons in support of such short order.