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Petitioner: Ayaz Ali Rajpar, Zulfiqar Khushk and Ors VS Respondent: Advocate General Sindh and JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Amjad Ali Sahito Title:Ayaz Ali Rajpar, Zulfiqar Khushk and Ors vs Advocate General Sindh and
JUDGMENT
Reported As: 2021 SHC 490 Result: Petition allowed Judgment JUDGMENT AMJAD ALI SAHIT O J. Through this common judgment, we intend to dispose of titled Constitutional Petitions. The Petitioners in these Petitions have impugned Notification + dated 20th March 2018 issued by the Respondent No.1 and have also challenged the vires of the Sindh Civil Servants (Provincial Management Service) Rules, 2018 (hereinafter referred to as the "PMS Rules, 2018" ). The petitioner in C.P.D.No. 7622 of 2018 has prayed in the following terms:- a. Declare that the Sindh Civil Servants (Provincial Management Services) Rules, 2018, are ultra vires as having been issued incompetently and without the prior approval of the Provincial Cabinet in violation of law and the judgment of the Hon'ble Supreme Court of Pakistan in the case of Mustafa Impex vs. Federation of Pakistan and other PLD 2016 SC 808 . b. Declare that the Sindh Civil Servants (Provincial Management Service) Rules, 2018 are ultra vires as having been issued in violation of Article 240 of the Constitution of Pakistan, 1973, as well as the judgment of the Hon'ble Supreme Court in the case of Criminal Original No. 89 of 2011, 2013 SCMR 2015 SCMR 353 and 2015 SCMR 456. c. Declare that in any event the Sindh Civil Servants (Provincial Management Services) Rules, 2018, cannot be given retrospective effect and the quota/sharing formula already determined vide Notification dated 23.01.2007 and others and reaffirmed by the Respondent vide statement dated 10.08.2018 cannot be amended or altered nor it could be made applicable to any existing of ficer till the last of ficer of existing Ex. PCS and PSS retire from service. d. Quash and set aside the impugned Notification dated 20.03.2018 notifying the Sindh Civil Servants (Provincial Management Service) Rules, 2018, and Notification dated 17.08.2018 issued by the Respondents.
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e. Prohibit and restrain the Respondents and their officers from acting on or giving effect to the Rules, 2018, and or altering the quota or sharing formula between Ex.PCS and PSS as is being done pursuant to Notification dated 17.08.2018 of interfering with the present functioning of Ex.PCS and PSS as separate cadres. f. .......... g. ......... The Petitioners in Constitution Petition No.D-61 10 of 2020 has prayed in the following terms:- i. Declare that the initial recruitment process with regards to candidates appearing in Combined Competitive Examination 2018, in relation to the petitioners, started at the time of the advertisement dated 19-02-2018 Declare that West Pakistan Civil Service (Executive Branch) Rules 1964 and Sindh Government Notification dated 10.10.1993 are applicable to the extent of the petitions whose initial recruitment process was stated pursuant to the advertisement dated 19th February , 2018. ii. Declare that the Provincial Management Service Rules 2018 do not retrospectively apply to Combined Competitive Examination 2018 therefore the recommendations by respondent No.3 under the Provincial Management Service Rules 2018, through Press Release dated 25.10.2019, for the appo9intment of Provincial Management Service (BPS-17), in relation to the petitioners, are illegal, void, unconstitutional and devoid of legal impact on the petitioners' initial appointment process. iii. Declare that issuance of Offer letters issued dated 30.01.2020 under Provincial Management Service Rules 2018 are illegal and unconstitutional. iv. Direct Respondent No.3 to issue amended recommendations, in relation to the petitioners, as per West Pakistan Civil Service (Executive Branch) Rules 1964. v. Direct Respondent Nos. 1 & 2 to issue the petitioners renewed offer letters as Assistant Commissioner from the date of initial appointment of the previous, impugned offer letter without adversely affecting their date of appointment in the Government of Sindh for the purposes of their inter se seniority . vi. Declare that the Provincial Manageme nt Service Rules 2018 were made in contravention with section 26 of Civil Servant Act 1973 and Sindh Government Rules of Business 1986, rendering them void, unconstitutional and illegal and without any legal impact. vii ........... 2. Material facts as pleaded in the aforementioned Constitution Petitions are that the Petitioners have sought quashment of Notification dated 20.03.2018 notifying Sindh Civil Servants (Provincial Management Service) Rules, 2018; and a Notification dated 17.08.2018 issued by the Respondents inter alia on the ground that they are ultra vires of Article 240 and 242 of the Constitution of Pakistan, 1973 besides violative of Sindh Civil Servants Act, 1973; and are in defiance of the judgme nts delivered by the Hon'ble Apex Court. It is further pleaded that Rules 2018 have not been approved by the Provincial Cabinet and need to be set aside in the light of judgment delivered by the Hon'ble Supreme Court of Pakistan reported in (PLD 2016 SC 808 ). 3. The Petitioners also alleged that the Sindh Civil Servants (Provincial Management Services) Rules, 2018, cannot be given retrospective effect while amend ing the quota/sharing formula earlier determined to vide Notification dated 23.01.2007; reaffirmed by the respondents vide official statement dated 10.08. 2018 nor it would apply to the existing Ex-PCS Of ficers till the last of ficer by declaring Ex-PCS as dying cadre. 4. The notices were issued to the respondents as well as to the Advocate General Sindh. 5. The learned counsel for the Petitioners inter alia contended that the Rules 2018 are violative of Articles 240 and 242 of the Constitution, 1973; and in conflict of Sindh Civil Servants Act, 1973 and their rules Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. The learned Counsel further contended that the Rules 2018 are also in violation of the principles laid down by the Hon'ble Supreme Court of Pakistan in the cases reported in 2013 SCMR 1752 , 2014 SCMR 1539 , 2015 SCMR 456 besides the Rules 2018 are also in violation of Article 4, 8, 9 of the Constitution, 1973. According to the Petitioners Counsel, the Rules 2018 were not approved by the Sindh Cabinet hence in violation of the judgment of the Hon'ble Supreme Court reported in PLD 2016 SC 808 . 6. It is contended that the Official respo ndents are in complete violation of the order passed by the competent authority and direction of Hon'ble Supreme Court in Criminal Original Petition No. 89 of 2012 have framed the
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Rules, 2018 denying and defeating the rights of the Petitioners guaranteed by the Constitution and Sindh Civil Servants Act. It was next contended that by the impugned Rules 2018 the Ex-PCS and PSS Cadres were merged against the language of the Sindh Civil Servants Act 1973 which Act was legislated under the Command of Article 240(b) of the Constitution. The learned Counsel submitted that fundamental changes in the service hierarchy in the provincial service structure would destroy the merit on the one hand and would open the back door induction of the civil servants, on the other hand. 7. The Petitioners Counsel contended that Schedule-I attached to the Rules 2018 is ultra vires provides induction of any other officer of equivalent grade into PMS without the requisite competitive process. The rules 2018 ex-facie are violative of the judgments of the Hono rable Supreme Court of Pakistan reported in the case of Criminal Original No. 89 of 2011 reported in 2013 SCMR, 2015 SCMR 353 and 2015 SCMR 456. It was further contended that the Rules 2018 can only be given prospective and not retrospective effect as is being done by the official Respondents; that the Rules 2018 violate the rights and interests of the Petitioners who have reached in Ex-PCS Cadre on merits and in case if the Rules 2018 are brought in the field, it will destroy merit criteria. The Ex-PCS officers are governed under the West Pakistan Civil Service (Executive Branch) Rules, 1964; the classification/principles are enumerated in the Rules 1952 have remained in the service structure of the Sindh Civil Servants to date and are protected further through Section 8 of the SCSA, 1973, which compartmentalizes service structure into "Service", "Cadre" and "Post" which terms are not interchangeable and cannot be merged; that there is distinction between the two cadres Ex-PCS and PSS Cadres even after the coming into force the Sindh Civil Servants Act 1973; and continues to remain in force depending upon their distinct classification, dependent on recruitment rules, job description, cadre and seniorities which terms are borrowed from 1952 Rules; that Job description and training of both Ex-PCS and PSS is different, that the Provincial service group i.e. Ex-PCS and PSS are made on the pattern of the Federal Service Structure i.e. OMG (Officers Management Group) equivalent to PSS and Pakistan Administrative Service (PAS) equivalent to Ex-PCS; those who secure higher marks in the combined competitive exam, are allocated Ex- PCS cadre and are given field training of revenue, quasi-judicial and administrative nature; they then appear for the "AC-I and AC-II" exams and have attachment with Account Treasury Officer and Account Officers, Survey and Settlement Directorate, Public Prosecutors, Municipal Services, Deputy Collectors, Health, Education, Revenue Officer and Tapedar , before passing another exam and viva voce conducted by Sindh Public Service Commission and getting a filed posting. The learned Counsel contended that those who secure lesser marks by order of merit are allocated the PSS cadre/secretariat service as Section Officers in BPS-17, the PSS officers are appointed in secretariat Service, however , they are accorded training according to their recruitm ent rules and department needs. The learned counsel contended that the fundamental rights of the Petitioners under Article 4, 8, & 9 of the Constitution have been violated. He contended that through the Rules 2018 two separate and distinct cadres have been illegally merged which has done away with the entire concept of civil services based on merit; that the merit is the cornerstone of the Sindh Civil Service structure; the merger of these cadres will affect the status of the Ex-PCS Officers which is a separate cadre having distinct recruitment Rules, petitioners are part of this cadre which was has been termed as dying cadre with the sole object to defeat judgments of Supreme Court. It was next contended that this Court was misled into believing that the rules sought to be notified i.e. the Sindh Civil Servants (Provincial Management Service) Rules 2006 were actually for training purposes of PSS i.e. Section Officers and this Court had allowed the Petition of the other side. Per learned counsel when certain Ex-PC S Officers gained knowledge of the Petition, they approached this Court under Section 12(2) of the Civil Procedure Code challenging the order in C.P No.1898 of 2012, wherein it was alleged that the orders were obtained by way of fraud as the real intention of the petitioners was not to seek framing of training Rules but in the garb of these Rules intended to merge the two cadres. The learned counsel contended that Ex-PCS Officers on dismissal of Section 12(2) CPC application filed CPLA No.522-K of 2016 before the Hon'ble Supreme Court of Pakistan whereby no background was given to the Hon'ble Supreme Court of Pakistan as to why the rules were being sought to be framed; the Hon'ble Supreme Court of Pakistan did not examine the draft Rules 2018 and observed while disposing of the Petition that any person aggrieved by the Rules 2018 can approach the appropriate forum. The Sindh Government would now be inducting all those officers of equivalent posts as PMS Officers who otherwise are not eligible to hold such post;
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that for an instance whether Assistant Director Agriculture who is serving in BPS-17 or Deputy Director in BPS-18 who has not passed the combined competitive exam but have passed regular exams through Public Service Commission could be appointed in PMS Service by virtue of Schedule-I of the PMS Rules 2018; that even otherwise the PMS Rules in Punjab were notified in the Year, 2004, and in KPK they were notified in the Year, 2007, much before the Judgments pass ed by the Hon'ble Supreme Court of Pakistan; lastly learned counsel prayed that the instant constitution petitions may be allowed. 8. Mr. M. Arshad Khan Tanoli and Mr. Danish Rashid Advocate for the respondents in C.P No.D-7622 of 2018, Learned Assistant Advocate General, Sindh, duly assisted by Mr.Faisal Siddiqui, Advocate vehemently opposed the contentions raised by the learned counsel for the petitioners and contended that, under PMS Rules, the appointment process is both initial and direct. All officers have to go through the academic and secretariat as well as field training, besides qualifying Assistant Collector Part I & II papers conducted through SPSC for their confirmation, thus the PMS has put in to place a more competitive and qualitative process for officers appointment and promotions; as per Section 26 of the Sindh Civil Services Act, 1973, the government or any person is authorized to make the Rules. Section 26 of the Sindh Civil Services Act, 1973 provides as follows:- "(1) Government or any person authorized by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purpose of this Act, (2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act" 9. The learned AAG contended that Sections 7 and 8 of the Act, 1973, define service, cadre, post and promotion and there is no impediment on the competent authority to frame Rules under Section 26 of the Act. The PMS Rules have created the opportunity for both Services and secretariat trainings for officers of the PMS and has enhanced the choice for the government to post the most suitable officers on the challenging assignments; the merit of the selected candidate/of ficer is protected under seniority list of the candidate within the batch and between the dying cadres through inter se seniority; that the difference in job descrip tion is not fixed with the Cadre but with the post, it varies from post to post, the cadre of the officer does not matter , for example the post of Deputy Secretary in SGA&CD has the same job description whether the officer posted there is from PSS or Ex-PCS cadres; that the difference in pay scale also varies from post to post, in Secretariat, officers are entitled for Secretariat and Utility allowances, be the officer from Ex-PCS or PSS, which otherwise is not available in the field posts, in projects, the project allowance is applicable to all officers be he from PSS or Ex-PCS, per learne d counsel the Ex-PCS and PSS officers have different training only at the level of BPS 17; whereas, they have same trainings in higher grades (BPS 18 and above). The Ex-PCS officers are provided revenue and judicial training, but not the secretariat training and; whereas, they get their promotion on both Secretariat and Revenue seats as Deputy Secretary and equivalent and above. On the other hand, the PSS officers are not promoted on revenue seats for want of revenue training, this lead to the litigation between these two cadres, resultantly , the PMS was notifi ed to ensure equal opportunities to all provincial cadre officers, that with regard to the PMS notification without cabinet approval, it is submitted that PMS Rules are notified pursuant to contempt notice of the Hon'ble Apex Court to implement orders within one week, therefore the summary was floated, approved and the Rules 2018 were submitted before the Hon'ble Supreme Court of Pakistan to vacate the contempt notice; that the first batch of PMs is appointed through combined competitive exam; 2019 and 186 PMS officers are currently undergoin g the PMS training focusing on both revenue and secretariat subjects, the training includes both academic and secretariat/field, thus, a unified cadre is in vogue in Sindh on the pattern of the PMS Punjab and PMS KPK, that with regard to the question that the PMS is the merger of Ex-PCS and PSS cadres and their status in PMS, it is submitted that the PMS is the creation of a new service based on the combined seats of erstwhile Ex-PCS and PSS services, the incumbents of these dying cadres have been protected under their separate inter se seniority and their promotion sharing formula is intact that was notified on 23.01.2017 on the recommendation of the sharing formula committee notified under PMS Rule 5(ii), thus, with inception of PMS the incumbent of the existing cadres have not been affected at all;
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lastly learned AAG contended that the questions pertaining to other clubbed petitio ns No. 3409 of 2019, P.7111 of 2018, P.57 of 2016 regarding induction of existing cadres officers in the PMS and the proportionate promotion sharing formula between the Ex-PCS and Ex-PSS; that the Bachal Memon case was that Engineers belonging to two separate departs viz. Department and Directorate of Education Engineering Works had separate cadres and separate seniority lists. Lastly , they prayed that this Court is very much competent to pass an order as deemed appropriate. 10. W e have heard learned counsel for the parties and have perused the record. 11. The background of this case is that a C.P No.D-1898 of 2012 Re. Riaz Ahmed Jakhrani and others v. Province of Sindh was filed before this court with the following prayers:- a) To direct the official Respondents to notify the draft Rules of Sindh Civil Servants (Provincial Management Service) Rules, 2006 where under Petitioners are made to require to obtain necessary training in the relevant fields so that they may not be discriminated with the Officers of Ex-PCS Cadre and further direct the Respondents to implement the lawful order of competent Authority viz. Chief Minister of Province of Sindh. b) To direct the Official Respondents to issue notification in the meanwhile relieving the Petitioners for joining Sindh Civil Services Academy Karachi for pre-Service training, Karachi as it has been done in the case of Ex-PCS Cadre. c) ......... d) ........ The case of the petitioners was that the petitioners belonged to the Cadre of Provincial Secretariat Services, (hereinafter referred to as "PSS" ). The SGA&CD is the Administrative Department of Ex-PCS and PSS cadres. The officers belonging to both of the cadres had a common channel of promotion; however , the Provincial Government had notified sharing formula for the officers of BPS-18 & BPS-19 vide Notification dated 23.01.2007. The Administrative Department of PSS cadre realized that the officers of PSS cadres should be afforded an opportunity to get training and the same should be channelized through statutory rules. The draft Rules were prepared to achieve the said object under the nomenclature of Sindh Civil Servants (Provincial Management Service) Rules 2006. The law Department to Government of Sindh vetted the draft Rules and referred it back for further necessary action to the Regulati on Wing of SGA&CD. The Chief Secretary accorded the approval for submitting the summary to the Chief Minister for final approval of the subject rules to established PMS rules but same was not finalized and finally a Constitution Petition No.D-1898 of 2012 was filed before this Court. After hearing the parties, the Divisional Bench of this Court while disposing of the Petition passed the following order:- "No doubt a sharing formula has been prescribed for the Cadre post of BPS-18 and 19 meant for officers of Ex-PCS and PSS vide notification dated 23.01.2007. It is also a fact that Ex-PCS officers are getting the training to compete in the promotion process for BPS-18 and 19 whereas there is no such criteria for PSS cadre officers to be selected for training to compete for their promotion to BPS-18 and 19 and in absence of such notified rules/statutory rules the selection of such officers to currently based on the personal desire and whims of the concerned executives of SGA&CD who are responsible for closing such officers from PSS Cadre and hence there is no transparent or statutory method which could streamline the promotion process of PSS cadre. We have also perused the comments filed on behalf of respondents and no justification was given by the learned AAG for withholding such rules to be notified. Such rules if notified would certainly cater for the good governance as it has alread y been established in other provinces and all required formalities have been completed. The subject draft rules are prepared in terms of Section 26 of Sindh Civil Servants Act, 1973 and even otherwise, it is well within the domain of the authority concerned to meant and streamline the subject rules, if at all required. There seems to be no justification for withholding the notification of the subject rules and on the contrary the absence of such notified rules would create a sense of insecurity amongst the PSS cadre who at present do not have a policy or mechanism whereby they could be selected for the training which could enable them to compete for their promotions. On 26-10-2013, a joint application was filed under Section 12(2) CPC read with Section 151 CPC in which it was pleaded that the judgment in the above petition was procured through misrepresentation of facts therefore, it is
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liable to be set aside. On 25-04-2016 after hearing the parties a Divisional Bench of this court (the judgment authored by one of us Muhammad Ali Mazhar-J) had disposed of the applications in the following terms:- "10. As a result of above discussion, the listed applications are dismissed and interim orders are vacated. However , it is significant and notewort hy to have a fleeting look to paragraph No.8 of the counter affidavit filed to the main petition by the respondents No. 1 to 4 wherein they have admitted the draft rules for creation of PMS by merging two Provincial Services Groups but the same could not be notified due to disagreement over sharing formula relating to the post of various grade by the Ex-PCS and PSS. Though the judgment contained the directions to issue a Notification of the subject Rules but at the same time the court remarked that "The subject draft rules are prepared in terms of section 26 of the Civil Servant Act, 1973, and even otherwise it is well within the domain of the authorities conc ern to amend and streamline the subject rules, if at all required" . This finding leads us to the conclusi on that in order to deal with the disagreement over sharing formula and for other related issues, a venue was left upon for the Government in the main judgment to amend and streamline the subject Rules, therefore, the applicants may file representation to the concerned authority or in alternate they may wait till such time the Rules are Notified so that they may challenge the vires of Rules if any through proper legal proceedings" 12. Things did not end here. Abdul Wajid Shaikh and others had impugned the judgment of this Court passed in C.P No.D-1898 of 2012 before the Hon'ble Supreme Court of Pakistan being Civil Petition No.522-K of 2016. By order dated 07.03.2017, the Hon'ble Supreme Court had disposed of the case, the operative part of the judgment reads as follows;- "Learned counsel for the parties woul d be satisfied if the relevant rules are approved and notified by the Government of Sindh by independent application of mind and without being influenced by the impugned order dated 22.06.2016 passed by the learned High Court of Sindh. 2. Learned Advocate General Sindh states that a summary for the rules has been sent to the Chief Secretary , which shall ultimately be approved by the Chief Minister . Suffice it to say that such rules shall be framed and notified by the concerned authority with independent appli cation of mind without being influenced by any order passed by the High court of Sindh. And the parties may seek appropriate remedy if they are aggrieved of the said rules" 13. In compliance with the order passed by Hon'ble Supreme Court, a summary was floated to the Chief Minister Sindh, with the proposal at para No.8, "that the proposal for formation of Provincial Management Service and its rules by amalgamating the PSS & Ex-PCS Groups may not be considered and be discouraged as both cadre/groups are separate". The Chief Minister Sindh passed the order "Proposal at…
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