Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ALI AZHAR KHAN BALOCH and otherss/Appellants VS Respondent: PROVINCE OF SINDH
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Ijaz Ahmad Chaudhry, Amir Hani Muslim Title:ALI AZHAR KHAN BALOCH and otherss/Appellants vs PROVINCE OF SINDH
JUDGMENT
Reported As: PLJ 2015 SC 216, 2015 PSC 145, 2015 SCMR 456 Result: Order accordingly Judgment JUDGMENT AMIR HANI MUSLIM, J.- C.R.P. No, 199/2013 Province of Sindh etc. v. Farooq Azam Memon by Mr. Sarwar Khan, Additional A.-G. Sindh The Additional Advocate-General Sindh has contended that Constitutional Petitions Nos.71 of 2011, 21, 23 and 24 of 2013, filed by the petitioners under Article 184(3) of the Constitution, challenging the vires of the six impugned legislative instruments were not competent. According to him, the issues raised in these Petitions were not of public importance. He contended that individual grievances of 30 Civil Servants relatable to the terms and conditions of service fall outside the purview of Article 184(3) of the Constitution. He contended that in such cases this Court, time and again, has declined to entertain such Petitions. While relying upon the case of Ishtiaq Ahmed Sheikh and others v. Messrs UBL and others (PLD 2006 SC 94), the learned Additional Advocate-General has contended that Article 184(3) has excluded adjudication of service matters. He next contended that the petitioners could have approached the Sindh Service Tribunal for redressal of their grievances, which was equally competent to examine the vires of the legislative instruments.
---
## Page 2
2. He further contended that the petitioners have failed to establish that their fundamental rights were violated by promulgation of the impugned legislative instruments, to give cause to them to invoke jurisdiction of this Court under Article 184(3). In support of his contentions, he has relied upon the judgments in the cases of All Pakistan Newspapers Society (APNS) etc v. Federation of Pakistan and others (PLD 2004 SC 600) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). 3. He next contended that the judgment under review has made Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 redundant, as the powers exercised by the competent- authority under the said rule have been done away with. He contended that the principles enunciated by the impugned judgment were applied retrospectively. According to the learned Addl. Advocate General, if the law is declared ultra vires of the Constitution, the effect of such declaration would operate prospectively. In support of this contention, he has relied upon the cases of Muhammad Younis and others v. Essa Jan and others (2009 SCMR 1169) and Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary Establishment Division and others (1992 SCMR 435). He further contended that the Officers/employees serving in different departments of the Sindh Government for years together, were ordered to be repatriated to their Parent Departments, after the termination of their lien by lapse of time. The learned Additional A.-G. Contended that the impugned judgment has attributed mala fides to the legislature, which finding is against the settled principles of law. He has relied upon the judgment in the case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) and prayed that the review be allowed on the aforesaid grounds. C.R.Ps. Nos. 388, 389, 390, 391, 397 of 2013 and Criminal R.P. 73 of 2013 By Raja M. Ibrahim Satti, Senior Advocate Supreme Court (C.R.P.388/2013)Ghulam Mustafa Zardari v. Province of Sindh etc. (C.R.P.389/2013)Hameedullah v. Province of Sindh and others (C.R.P.390/2013)Saifullah Phulpoto v. Province of Sindh etc. (C.R.P.391/2013)Nisar Ahmed Brohi v. Province of Sindh and others (C.R.P.397/2013)Manzoor Ahmed Sheikh etc. v. Province of Sindh and others (C.R.P.73/2013) Nizamuddin and others v. Province of Sindh through its Chief Secretary Sindh and others 4. Raja M. Ibrahim Satti, learned counsel for petitioner(s) has contended that this Court has examined the vires of legislative instruments while interpreting the Articles of the Constitution without issuing notices to the Attorney General for Pakistan in terms of Order XXVII-A, Rule 1, C.P.C., therefore, the impugned judgment is not sustainable. In support of his contention he has relied upon the case of Federation of Pakistan thr. Secy, M/o of Law etc. v. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). He next contended that the Petition was not maintainable under Article 184(3) of the Constitution as the petitioners were seeking redressal of their individual grievances and were not seeking enforcement of their fundamental rights. 5. It was next contended by the learned counsel that mala fides could not be attributed to the Provincial Legislature, which has passed the legislative instruments, in exercise of the powers guaranteed by the Constitution. According to the learned Counsel, the Provincial Legislature was competent to legislate law, which is their divine right, therefore, the legislative instruments were wrongly struck down. He in support of his contentions has relied upon the case of Imran Ullah v. The Crown (PLD 1954 Federal Court 123). 6. He further contended that in compliance with the impugned judgment, the Sindh Chief Secretary has issued notification repatriating the petitioners to their parent Departments, without affording them the right. Of audience. The learned counsel further argued that the issue of `absorption' of the
---
## Page 3
petitioners was a past and closed transaction; and by the impugned judgment this honorable Court has erroneously undone absorption of the petitioners by ordering their repatriation retrospectively. Criminal R.P. No, 72 of 2013 Syed Altaf Ali and others v. Chief Secretary Sindh etc. By Syed Ali Zafar, Advocate Supreme Court 7. Syed Ali Zafar, counsel for the petitioners, has contended that this honourable Court has wrongly entertained the issue of appointment of the petitioners by nomination in excess of the prescribed quota in exercise of its original jurisdiction under Article 184(3) of the Constitution. According to the learned Counsel such an issue could only be adjudicated upon by this Court under Article 212(3) of the Constitution, which Article deals with the service matters. 8. He next contended that the Court ought to have decided the issue on merits and not on the basis of the list provided by the Sindh Government. The counsel referred to Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964, which provides for promotion of various categories of Civil Servants by nomination. He submitted that if the appointments of the petitioners by nomination are held to be illegal then all appointments made under Rule 5(4)(b) should be declared illegal and not just those nominated since 1994. He submitted that the aforesaid rule provides for preparation of lists B and C but no such lists were maintained by the Sindh Government for the nomination of the petitioners as a consequence whereof they did not have the opportunity to challenge it. He submitted that a cut-off date should have been determined by the Sindh Government for examining the appointments made in excess of the quota. Lastly, the learned Counsel contended that departmental construction of a statute, though not binding, can be taken into consideration, especially when it was followed by the department consistently. In support of his contention he has relied upon the case of Muhammad Nadeem Arif and another v. Inspector- General of Police, Punjab, Lahore and others (2011 SCMR 408). Criminal R.P. No, 70 of 2013 Yar Muhammad Bozdar v. Province of Sindh etc. by Mr. Tariq Mahmood, Senior Advocate Supreme Court 9. Mr. Tariq Mehmood, learned Senior Advocate Supreme Court submitted that the petitioner was a Superintendent in Board of Revenue, Government of Sindh. The recommendation for his appointment was made by the Member, Board of Revenue, Sindh in terms of Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964. A list was prepared in 2005 and the petitioner was recommended for nomination, therefore, his case falls within the prescribed limit of the quota. It was further submitted by the learned counsel that the petitioner passed many departmental examinations which were not taken note of by this Court while passing the impugned judgment against the petitioner. Criminal R.P. No, 71 of 2013 Muhammad Jaffar Abbasi v. Province of Sindh and others by Mr. Tariq Mahmood, Senior Advocate Supreme Court 10. Mr. Tariq Mehmood, the counsel for petitioner, submitted that the petitioner was appointed as Deputy Secretary, Sindh Public Service Commission through competitive process. On 30-3-1995, the post was upgraded to BS-18. On 1-9-1999, the petitioner was transferred to S&GAD and absorbed in the Provincial Secretariat Service. The notification of his absorption was cancelled. The petitioner challenged the cancellation of the notification before the Sindh Service Tribunal. The Tribunal accepted his Appeal against which Sindh Government filed CPLA before this honourable Court. The CPLA, however, was dismissed for non-prosecution and the application for restoration of the CPLA was also dismissed. Resultantly, the order of the Tribunal attained finality. However, the absorption of the petitioner has again been cancelled, pursuant to the impugned judgment without taking note of the aforesaid facts.
---
## Page 4
11. He next contended that before absorption, the petitioner was a Civil Servant working in the Sindh Public Service Commission, which is an attached department of the S&GAD Department, and therefore, such absorption could not have been withdrawn in terms of the findings of the impugned judgment. C.R.P. No, 194 of 2013 S. M. Kaleem Makki v. Dr. Nasimul Ghani Sahito by Raja M. Asghar Khan, Advocate Supreme Court 12. The learned counsel, Raja M. Asghar Khan submitted that in the year 1993, the petitioner was appointed as Project Director in BS-19 in the Sindh Small. Industries Corporation through advertisement. Subsequently, by notification dated 22-6-2000, he was declared surplus. On 30-9- 2005, he was absorbed in Provincial Secretariat Service (PSS) under Rule 9A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The learned counsel contended that the absorption of the petitioner in P.S.S. In the same scale was made after observing all the codal formalities; therefore, his appointment by absorption was valid. C.R.P. No, 204 of 2013 Syed Abid Ali Shah (Retired) v. Farooq Azam Memon etc. by Mr. Abadul Hussnain, Advocate Supreme Court 13. The learned counsel submitted that in 1976 the petitioner was appointed as Management Trainee in the Board of Management, Sindh for nationalized Ghee Industries. On 16-8-1997, he was appointed Managing Director at Maqbool Co. Ltd. When the Sindh Government requisitioned his services. On 24-10-1997, the petitioner was sent on deputation for 3 years to the Ministry of Industries and Production. On 15-11-1997, he was appointed Cane Commissioner in BS-19. Then on 5-4-1998, he was transferred as DG, Bureau of Supply and Prices, Sindh. Subsequently, on 15-11- 1998, he was repatriated to Ghee Corp. And on +4-1-1999, his services were placed at the disposal of Population Welfare Department (PWD). On 18-1-1999, he was appointed as Additional Secretary, PWD, and on 9-8-1999, he was absorbed in PWD in relaxation of rules. Then, on 30-9-1999, Ghee Corp. Relieved him but on 18-12-1999, the Government issued a notification for repatriation of the petitioner. However, on 21-12-1999, the Secretary of Sindh Government informed that the petitioner has been absorbed, therefore, he cannot be repatriated. By notification, dated 18-1-2013, the petitioner was absorbed in PSS. 14. The learned counsel contended that, in pursuance of the impugned judgment, he was de- notified on 2-7-2013 and repatriated to Ghee Corporation though he had been merged in Sindh Government in PSS cadre and Ghee Corporation had become defunct. The appellant retired on attaining the age of superannuation, on 1-6-2014, one year after de-notification. C.R.P. No, 393 of 2013 Mujeeb-ur-Rehman Shaikh v. Province of Sindh by Mr. Abdul Rahim Bhatti, Advocate Supreme Court 15. Mr. Abdul Rahim Bhatti, the learned Advocate Supreme Court, contended that the petitioner was initially appointed as Assistant Director in Agriculture Department in BS-17 in 1989 through Sindh Public Service Commission. Later, his services were requisitioned by the Environment Department, Government of Sindh for a period of two years in the public interest. A summary was moved for his transfer and, consequently, he was appointed in the Environment Department. On 13-10-2005, he was promoted as Deputy Director in BS-18 through Provincial Selection Board and was granted seniority. The petitioner was not a party to the proceedings either in the High Court of Sindh or before this Court. He was repatriated to his parent department without considering that the petitioner fulfilled all pre-requisites of his appointment in the Environment Department, as provided under Rule 9(1) of the Rules of 1974. The learned counsel submitted that petitioner was validly appointed by transfer under Rule 9(1), and not under Rule 9-A.
---
## Page 5
16. He further contended that the word 'person' used in Rule 9(1), clearly manifests the intention of the legislature that there is no bar to the appointment of the petitioner by transfer under the A.P.T. Rules and in the other three Provinces and the Federation such transfers are ordered in routine. He next argued that the expression 'person' used in the Rule 9(1) does not mean Civil Servant only and includes a 'Government Servant', who may not be a Civil Servant. C.R.P. No, 387 of 2013 in Constutional Petition 71 of 2011 Imdad Memon and others v. Province of Sindh and others by Mr. Hamid Khan, Senior Advocate Supreme Court 17. Mr. Hamid Khan, learned counsel for the petitioners, contended that none of the petitioners was party to the proceedings; therefore, the Court could not have passed an order affecting their rights. He submitted that neither the High Court nor this Court (under Article 199 and Article 184(3) respectively) had the jurisdiction to examine the issue pertaining to the terms and conditions of service of a Civil Servant. The exercise of jurisdiction is barred under Article 212 of the Constitution. The issue of absorption is a matter relating to the terms and conditions of service, to be determined under the Civil Servants Act and the Rules framed thereunder. He submitted that a number of Petitions were filed by Civil Servants absorbed in the Secretariat Group in the High Court of Sindh, in ignorance of the fact that remedy was available to them before the Sindh Service Tribunal. Therefore, the Petitions were barred under Article 212 of the Constitution. The learned counsel while relying upon the case reported in Superintending Engineer Highways Circle Multan v. Muhammad Khurshid (2003 SCMR 1241), submitted that the matter of jurisdiction has not been dealt with in depth. He contended that Rules 9(1) and 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provide two modes of appointment by transfer and both these modes are recognized by law. 18. The learned counsel submitted that Articles 240, 241 and 242 of the Constitution deal with the civil structure and Article 212 provides remedy to a Civil Servant. These Articles do not relate to fundamental rights. It has to be assessed in light of the aforementioned Articles whether the Supreme Court can adjudicate upon the issue relatable to the terms and conditions of service under Article 184(3). The learned Counsel contended that the Court has to draw a distinction between Article 184(3) and Article 212 while giving the findings. He contended that Article 240 empowers the Provincial Legislature to legislate laws relating to the terms and conditions of service of Civil Servants. 19. He next contended that in order to invoke the jurisdiction of this Court under Article 184(3), the expression 'subject to the Constitution' has to be given narrow meaning, as referred to in the Article 275. The learned counsel submitted that Civil Servants do not have fundamental rights to invoke jurisdiction of this Court under Article 184(3) of the Constitution. According to the learned counsel, benefit of Articles 9 and 25 of the Constitution cannot be extended to the Civil Servants. C.R.P. No, 193 of 2013 Ali Azhar Khan Baloch v. Province of Sindh etc. by Barrister Farough Naseem, Advocate Supreme Court 20. The learned counsel submitted that the petitioner was employed as Deputy Manager at Pakistan Steel Mills (PSM), which works under the control of Ministry of Production. On 16-9-1992, upon the directive of the then Chief Minister, his services were placed at the disposal of the Government of Sindh. For two years, he performed duties at various departments in the Government of Sindh, e.g. On 6-3-1993, he was posted as Project Director, Lines Area, Redevelopment Project KDA in BS-18. Finally, on 25-7-1994, permission was granted for his absorption by the Establishment Division into the Government of Sindh. On 28-5-1994, the petitioner was finally absorbed as Deputy Secretary in the Sindh Secretariat (PSS) and was placed at the bottom of the seniority list. His lien with the PSM was terminated in 1994. He earned promotions from
---
## Page 6
time to time and finally he was promoted as Secretary (BS-21) in the Sindh Government, by Notification dated 28-9-2012. By notification dated 25-4-2013, issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan, he was appointed by transfer as Senior Joint Secretary (BS-21) in Secretariat Group and his services were placed at the disposal of the Wafaqi Mohtasib for his further posting. He is now posted as Director General of the Wafaqi Muhtasib. 21. The learned counsel for the petitioner contended that the cut off date for the application of the impugned decision was held as 1994, therefore, his case was not covered by the impugned judgment. The learned counsel submitted that the cut off date of 1994 is not backed by any standard. The date given in the litigation in 1996 (in which the petitioner's case was decided) would be more suitable, which is 22-3-1995. The Counsel contended that the date of 1994 seems to be arbitrarily fixed. The learned counsel cited the case Province of Punjab thr. Secretary C&W Department and others v. Lbrar Younas Butt (2004 SCMR 67) in support of his submission. 22. The learned counsel then referred to Rule 5 of Framework of Rules and Procedure applicable to Secretariat, which provides that the appointment of Additional Secretary in the Federal Secretariat can be made from public servants or officials from public or private enterprises. The learned counsel submitted that if there is such an option available in the Federation, why it should not be made available at the Provincial level. The petitioner was an employee of PSM, which is a public enterprise. He further submitted that appointments cannot only be made through CSS examinations, citing the Police Service as an example. 23. Alternatively, the counsel argued that the petitioner is qualified to be adjusted under Rule 5 and he should either be allowed to go to the High Court and this honourable Court may observe that the impugned judgment will not come in his way or this Court may give necessary directions to the Department. 24. The counsel next contended that in pursuance of Services of Pakistan (Redressal of Under- Representation) Ordinance, 2012, on 1-12-2012, the petitioner was appointed by transfer as Senior Joint Secretary in Secretariat Group in Federal Government on probation under section 6 of the Sindh Civil Servants Act, 1973. On 25-4-2013, the petitioner was absorbed by the Federal Government and appointed at Wafaqi Muhtasib Secretariat. He submitted that the Federal Government realized that some Provinces were underrepresented, including Sindh and Balochistan. The Ordinance provided that officers could be taken from Provincial Civil Service and inducted under the Ordinance. Counsel submitted that the petitioner's appointment is valid as his services were placed in the Federal Government under the aforesaid Ordinance. 25. He next contended that the notification for the petitioner's absorption was issued prior to the impugned judgment i.e on 12-6-2013. He submitted that if the judgment has to be implemented retrospectively, the petitioner should be repatriated in PSM and granted backdated seniority. C.M.A. No, 4663 of 2013 in C.R.P. No, 409 of 2013 Mukhtar Ali etc. v. Province of Sindh etc. by Mr. M. Aqil Awan, Senior Advocate Supreme Court 26. The learned counsel, appearing for three petitioners, Mukhtar Ali Pholijo, Muhammad Saleem Jokhio and Abdul Rashid, submitted that the persons against whom this judgment is being applied were not Civil Servants either before or after their absorption; they were just transferred from one cadre to another. 27. The counsel submitted that Mukhtar Ali was appointed by Selection Board as a Medical Officer in BS-17 in Sindh Employee Social Security Institution (SESSI). By notification, dated 31-1-1996, he was absorbed in BS-17 in Sindh Council Service, Medical Branch. Before the impugned judgment was passed, the petitioner was Administrator in District Municipal Corporation, Malir in Executive Cadre. 28. The second petitioner, Muhammad Saleem, was an officer in City District Government Karachi in BS-18, Administrative cadre. The Counsel submitted that the petitioner was employed in the same
---
## Page 7
department but he was absorbed in another branch. The Counsel submitted that the services of the employees of KMC are regulated by the Sindh Local Government Ordinance 1979, whereas the services of the employees of the Councils are governed by the Sindh Councils Unified Grades Service Rules 1982. 29. The third petitioner Abdul Rashid was appointed as Assistant Director, KMC in BS 16 on 21-3-1996. On 12-4-2003, he was promoted to BS-17 and on 19-4-2007, he was subsequently promoted to BS- 18. He was employed as an officer in City District Council; the nomenclature kept changing according to the prevalent laws but, basically, he was an employee of the Municipal Corporation. On 12-2-2013, the petitioner was absorbed in Sindh Councils Service and promoted to BS-19 on 12- 2-2013. 30. The counsel referred to Rule 12(5) of the Sindh Councils Unified Grade Service Rules, 1982, which provides for appointment by transfer. The learned counsel contended that Mukhtar Ali's appointment was not challenged but he had been repatriated to his parent office pursuant to the impugned judgment, which does not relate to non-Civil Servants per se. The impugned judgment was passed on 12-6-2013 and he was repatriated on 2-7-2013. The learned Counsel contended that since absorption has been declared illegal by the impugned judgment, the petitioner, an officer of BS-19, has been repatriated to BS-17. 31. The learned counsel submitted that the impugned judgment of this Court has curtailed a prevalent practice, which is permissible under the law. The learned counsel contended that this Court needs to lay down the modalities of implementation and application of the impugned judgment. The modalities regarding deputation and absorption and the process of repatriation after illegal absorption should also be laid down. He contended that if an officer has been wrongly absorbed, a show cause notice should be issued, the grounds of repatriation should be mentioned and speaking order should be passed, which is justiciable. 32. The learned counsel submitted that the impugned judgment does not apply to non-Civil Servants as they were not party to the original proceedings and no counsel appeared on their behalf. He cited the cases of Fazal Ahmed Samito v. Province of Sindh (2010 PLC (C.S.) 215) and Zulfigar Ali Domki v. Province of Sindh (2012 PLC (C.S.) 1176) and argued that KMC/Council employees are not Civil Servants. He further submitted that Rule 12(5) of the Rules permits appointment by transfer. 33. The learned counsel submitted that, firstly, the judgment should be prospective, particularly, when punitive consequences flow from its application. Secondly, he contended, that the judgment is against the principles of natural justice; the petitioners were not party to the proceedings and they were not heard. Thirdly, the impugned judgment nullified all absorptions since 1994 even though all the absorptions were not challenged. Furthermore, past and closed transactions under the impugned legislations cannot be held to be unlawful. Fourthly, he contended that the law of deputation says that transfer should be made to a post in the same grade. Similarly, repatriation should also be made in the same…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.