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Petitioner: Niaz Hussain Abro & 02 others VS Respondent: Province of Sindh & others
Court Name: Sindh High Court Judge(s): Muhammad Shafi Siddiqui, Adnan-ul-Karim Memon Title: Niaz Hussain Abro & 02 others vs Province of Sindh & others Case No.: (1) C.P. No. D- 3816 of 2011 (2) C.P. No. D- 713 of 2013 Date of Judgment:2019-09-06 Reported As: 2019 SHC 346 Result: petitions disposed of
Judgment ADNAN-UL-KARIM MEMON, J: - Both the above referred Constitutional Petitions are being disposed of by this common Judgment as the issues raised are similar in nature. 2. Through these Petitions , the Petitioners have prayed for issuance of writ of quo warranto against the private Respondents to vacate the office presently they are holding, inter-alia, on the ground that they are not qualified to hold the office and their appointments are hit by Article 199 (1) (b) (ii) of the Constitution, 1973. Per petitioners, initial appointment of the Respondents No. 04 to 23 in BPS 17 and their subseq uent promotion to BPS-18 & 19 is/was against the land mark judgment passed by the Hon'ble Supreme Court of Pakistan in Criminal Original Petition No.89 of 2011 reported in 2013 SCMR 1752 , whereby those who were granted exemption from qualifying Departmental Examination Part- I & II prescribed for the post of Assistant Collector/Assistant Commissioner (Revenue) and given out of turn promotions, were reverted and vide order dated 27.9.2016 the Government of Sindh was specifically directed to formulate mechanism for nomination for appointments for the Assistant Collector/Assistant Commissioner (BS 17) in Ex. PCS cadre. Per Petitioners, the aforesaid directions have not been implemented by the official Respondents; hence, the petitioners have approached this Court by filing the captioned petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. We inquired from the learned Counsel for the petitioners to point out any order or judgment of the Honorable Supreme Court which has not been implemented yet. 3. Mr. Ali Asadullah Bullo, Advocate assisted by Sayed Mureed Ali Shah, learned Counsel for the Petitioners, contended that except those who have passed away or retired from service during pendency of the instant petitions, are occupying respective posts in violation of the judgment rendered by the Hon'ble Supreme Court of Pakistan in case of contempt proceedings against the Chief Secretary Sindh in Criminal Original Petition No.89 of 2011 reported in 2013 SCMR 1752 , Ali Azhar Khan Balouch vs. the Province of Sindh reported in 2015 SCMR 456 and various other orders passed by the Supreme Court of Pakistan in different proceedings. He next contended
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that the Hon'ble Supreme Court has declared appointments by way of nominatio n and out-of-turn promotions by exempting the private respondents from qualifying the prescribed Departmental Examination Part I and II for Assistant Collectors (BPS-17) as illegal and directed the Respondent No.1/the Chief Secretary Government of Sindh to repatriate them to their original positions or terminate their services as the case may be. But, the private respondents being in league with the concerned Government functionaries and to enjoy personal benefits managed their illegal retention in the Government of Sindh; thus, succeeded to defeat the basic spirit of the judgments passed by the Honorable Supreme Court of Pakistan as discussed (supra). He next contended that the petitioners are aggrieved of illegal appointments by way of nominations and their promotions by granting them exemption from the prescribed Departmental Examination Part I and II. 4. Conversely , Mr. M.M Aqil Awan, the learned Counsel for the Respondents 5,13,18,24 & 50 raised the question of maintainability of the instant petitions and argued that the Petitioners have no locus standi to file the Petitions; that Respondent No.5 & 13 were appointed as Assistant Commissioner under Rule 5(iv) (b) and 5(c) of West Pakistan Civil Service (Executive Branch) Rules 1964 by way of nomination. The date of appointment of Respondent No.5 is 16.03.1993, whereas date of appointment of Respondent No.13 is 18.10.1993; that the Chief Minister Sindh is competent to grant exemption to the private respondents from passing the Departmental Examination Part I and II; that right from the date of grant of exemption till date none of the colleagues of answering respondents felt aggrieved in seniority or promotion caused to them by grant of the said exemptions. Moreover , non-passing of Departmental Examination is not a ground for quo-warranto, as it deals with the legality of appointment, keeping in view three factors viz. whether authority was competent to make such appointment? Whether incumbent respondents possess minimum prescribed qualifications for such appointment? Whether appointment is made in accordance with procedure laid down by Law? Whereas grant of exemption in qualifying in passing departmental examination is only relevant for seniority or promotion; that the exact grievance of the petitioners appears to be violation of statutory quota prescribed in the West Pakistan Civil Service (Executive Branch) Rules, 1964; that the petitioners have failed to highlight as to what was the percentage of quota in the year 1993 and how many vacancies were available in that year and as to how many vacancies were meant for in accordance with that prescribed quota and unless that numerical exercise is done, they cannot succeed in establishing that appointment of answering respondents in early 90s was beyond their quota. He continued and stated that in the above referred cases, the Honorable Supreme Court of Pakistan, with the assistance of administrative department, marshaled the posts in accordance with quota and determined the number of officers, who were appointed beyond quota for nomination. The learned Counsel referred the position of some of the Private respondents in the following tabulated form: Respondent No.Name of RespondentDate of AppointmentMode of AppointmentGrant of exemptionPresent grade & place of Posting 5 Samiuddin 16.03.1993By way of nominationQualified examBS-20 awaiting posting 13 Nasir Abbas 18.10.1993By way of nominationQualified examBS-20 DG Gorakh Hill Development Authority 18 Ali Ahmed 18.4.1996By way of nominationQualified examBS-19 posted as Add Sec (Law) 24 Shakeel-uz- Zaman22.01.1992Post taken out of purview of PSCGranted exemption under Rule 13 by CMBS-20 posted as Member Registration STAMP & Evacue Property BOR Karachi
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50 Mehdi Ali Shah 14.11.1995By taking out of purview of PSCQualified examBS-19 posted as Deputy Commissioner Mirpur Khas 52 Agha Abdul Rahim14.11.1995By taking out of purview of PSCQualified examM.D. (Water & Sewerage Agency) W ASA Hyderabad. Having explained his case, he prays for dismissal of the instant petitions. 5. Mr. Mohammad Ashraf Kazi, the learned Counsel for respondent No.6 in C.P No.D-3816 of 2011 has referred to the Counter Affidavit filed on behalf of the respondent No.06 and adopted the arguments by Mr. M.M Aqil Awan. However he added that these petitions are not maintainable; that respondent No.06 has qualified the requisite examination; that relief is not to be denied to the litigants on technical consideration, however , insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches as the instant Petitions are hit by laches; that Writ of quo warranto would not be a remedy for a person to air his private vengeance; that Petitioners have not been able to show as an 'aggrieved person' in terms of Article 199 of the Constitution of Islamic Republic of Pakistan to agitate any bona fide grievance, therefore, they have no case at all to invoke the Constitutional Jurisdiction of this Court, through the instant writ petitions. 6. Mr. Pervaiz Ahmed Memon, learned Counsel for respondents No.25 & 26 has adopted the arguments advanced by Mr . M.M Aqil Awan. 7. Mr. Samiullah Soomro, learned Counse l for respondents No.8, 27, 30, 31, 34, 35, 36, 38, 39, 40, 44, 49 & 55 has adopted the arguments advanced by Mr . M.M Aqil Awan. 8. Mr. Jamil Ahmed Rajpar learned Counsel for respondents No.41 to 45 has also adopted the arguments by Mr. M.M Aqil Awan. 9. Respondent No.16 namely Noor Muhammad Shah, who is present in person, has referred his statement dated 13.11.2018 and submitted that he was appointed as Assistant Commissioner on 05.11.1995 under Rule 5 (4) (b) & (5) (c) of the West Pakistan Civil Service (Executive Branch) Rules, 1964; that before his appointment as Assistant Commissioner he was Deputy Director (BS-17) in Board of Revenue Sindh where from he passed Revenue Qualifying Examination conducted by the Sindh Public Service Commissioner in year 1992 and successfully completed mandatory One year Revenue and Magisterial Training at Mukhtiarkar / Tahsildar Office; that his name was placed on the Select List B maintained by Board of Revenue Sindh; that in 1994, he was transferred and posted as Private Secretary to Chief Minister Sindh and by virtue of holding the post of Private Secretary to Chief Minister Sindh he became eligible for the Select List C under Rule 5(5)(C). After fulfilling all the prerequisites/codal formalities as mentioned above he was appointed as Assistant Commissioner by transfer vide Notification No.SO-V (S&GAD) X-15/95 dated 05.11.1995; that after promulgation of Rule 5(5)(C) of West Pakistan Civil Service (Executive Branch) Rules, 1964 and introduction of Select List C in 1987 , he was appointed Assistant Commissioner after passing Revenue Qualifying Examination and fulfilling all the pre-requisites of Select List C; that the question of appointment in excess of quota in his case does not arise at all; that he has also qualified the Departmental Examination of Assistant Collector Part-I & II conducted by the Sindh Public Service Commission in 1996 and secured First Position. He prayed for dismissal of the instant Petitions. 10. Mr. Shahriyar Mahar , learned AAG has briefed us on the factual aspec t of the case and submitted that the Respondents No.17, 20, 23 and Mr. Attaullah, they have already been repatriated to their parent Departments/Organizations; that the Respondents No.14, 15, 28 and 51 have retired from Government service; that the Respondents No.32 and 46 have passed away and the Respondent No.53 had resigned from Government service. Learned AAG added that the Respondents No.4 to 14, 16,18 to 23, 25, 26,41 to 45 and 56 were appointed under clause (b) of sub-rule (4) and clause (c) of sub-rule (5) of Rule-5 of the West Pakistan Civil Service (Executive Branch) Rules, 1964, with the approval of the Competent Authority i.e. Chief Minister , Sindh. Further , the Respondents No.15, 17, 24, 27 to 40
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and 46 to 55 were appointed under Rule-5 of the Sindh Public Service Commission (Function) Rules, 1990 by taking the post from the purview of Sindh Public Service Commission with the approval of the Competent Authority i.e. Chief Minister , Sindh; that Rule-5 of the Sindh Public Service Commission (Function) Rules, 1990 had been omitted in the year 1997 vide Notification dated 18.02.1997. Besides, Rule-13 of the West Pakistan Civil Service (Executive Branch) Rules, 1964, providing relaxation of rules by the Chief Minister , Sindh from passing the Departmental Examination of Assistant Collector Part-I and II had also been deleted vide Notification dated 30.06.2009. Further , the Government of Sindh has repealed the West Pakistan Civil Service (Executive Branch) Rules, 1964 vide Notification dated 20.3.2018; that the Honourable Supreme Court of Pakistan in its order dated 27.3.2018 has disposed of the Criminal Original Petition No.231/2016 and dismissed the Criminal Miscellaneous Application No.1055/2017 (non -compliance of Court order given in Civil Review Petition No.193/2013). Besides, the Honourable Supreme Court of Pakistan in its another order dated 27.3.2018 passed in Suo Moto Case No.14/2016 that the rules, vires whereof have been considered in this suo moto case, action stands repealed, therefore, these suo moto proceedings are dropped and disposed of; that the Honourable Supreme Court of Pakistan also disposed of the CMAs No.6396/2016, 281-K/2015, 1411/2016 and 1412/2016, as the main matters stands decided/disposed of. Learned AAG also referred to the statement dated 16.3.2014, whereby a copy of the updated list of the Respondents No.4 to 56 was placed on record which explicitly shows that the Respondents No.4 to 21 and 46 to 45 passed Departmental Examination, the Respondent No.2 and 53 to 56 have not yet passed the Departmental Examination and the respondents No.23 to 45 were exempted from passing the Departmental Examination. In view of his arguments, he prayed for dismissal of the captioned petitions. 11. Mr. Ali Asadullah Bullo, learned Counsel for the petitioners in exercising the right of rebuttal argued that the private Respondents No. 4 to 23 are not qualified to hold the office; that they were inducted into the service on permanent basis without qualifying the competitive examination and they also failed to pass/qualify the Departmental Examination Part I & II prescribed for Assistant Collector pre-requisite for their confirmation in their service on regular basis; that the Respondents No.4, 8, 11 & 14 were granted exemption under Rule 13 of West Pakistan Civil Service (Executive Branch) Rule, 1964 by the Chief Minister , Sindh; that they were subsequently promoted to BPS-18 and some of them are promoted to BPS-19, in violation of Rule 8(5) of West Pakistan Civil Service (Executive Branch) Rules, 1964; that the private respondents were not only illegally nominated beyond the prescribed quota, but have also violated the prescribed strength of officers; that the respondents from Serial No.24 to 45 are those officers who were conferre d upon illegal benefit of exemption from Departmental Examination at the cost of eligible and suitable officers and the official respondents have also violated the mandatory/statutory provisions of Section 6(1) & (3) of the Sindh Civil Servants Act, 1973; that the Respondents No.46 to 56, including Respondents No.27, 28, 29, 32, 35, 14 & 40 were deferred/superseded by the recommendation of the Provincial Selection Board, but they have been given promotion by the official respondents prejudicing the cause of the suitable and fit officials; that the official respondents have committed gross violatio n of rules and regulations as set forth by the legislature and have been illegally exercising the authority and powers; that the impugned notifications, through which the aforesaid orders for appointment by promotion were acquired in a questionable manner , are neither here nor there as the way those notifications were not issued as they should have been and no prescribed method of appointment by promotion or, nomination quota, etc.; that there was absolutely no provision in the relevant statute or rules and regulations to grant exemption to any civil servant/private respondents; that some of the private respondents having repeatedly failed in the required examination for their confirmation in service were required to be sent back to their parent departments if any or their services terminated, as the case may be. He contended that the exemption granted to them by the official respondents was and is ab initio void, malafide and without jurisdiction and of no legal effect and nullity in the eyes of law; that the private respondents are going to be further conferred with additional benefits by way of giving them yet another promotions through the Provincial Selection Board, which body is, unfortuna tely, not performing its duties independen tly and in a transparent manner; that the rights of other civil servants are also violated under Articles 4, 9,14,18,25(1) & 38 of the Constitution of Islamic Republic of Pakistan. He also refuted the claim of the Respondents with regard to the point of laches on the ground that when there is continuing wrong and the said wrong can be called in question by anyone at any time.
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12. Syed Mureed Ali Shah learned Counsel for the petitioner in C.P. No.D- 715 of 2013, contended that appointment of the private Respondents as Assistant Commissioners in BPS-17 by way of nomination is illegal in violation of Rule 10 of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 and Rule 19 of Rule, 1974; that entry into Ex-PCS service is regulated by Rule 5 of the West Pakistan Civil Services (Executive Branch) Rules, 1964, which has been ignored, while inducting/nominating the private Respondents; that the private Respondents have failed to complete the training and pass the Departmental Examination Part I & II prescribed in the law , thus the initial appointment of the private Respondents is nullity in the eyes of law . 13. We have noticed that this Court vide order dated 13.11.2018 recorded statement of the learned Counsel for the Petitioners that he does not press this Petition against the Respondents No.14, 15, 28 and 51, who have retired from Government service, whereas Respondents No. 32 and 46 have passed away and Respondent No.53 had resigned. So far as Respondents No.17, 20 & 23 are concerned, they have already been repatriated to their parent organizations as well as Respondent No. 29. It is further noted that despite the publication of the notice made in the newspapers, the Respondents No.12, 15, 16, 33, 37 & 48 remained absent; hence service upon these respondents has been held good by the aforesaid order , whereas the respondents No.10 & 22 were ordered to be served through Inspector General Prison, Karachi. As per record, the Respondents No.4, 7, 9, 22, 24 to 27, 30, 39, 40, 47, 49 & 52 were also served. Record further reflects that some of the private Respondents have passed away , but no amended title has been filed. 14. We heard learned Counsel for the parties on the issue of maintainability of the instant petitions under Article 199 of the Constitution, 1973. 15. The legal position with regard to maintainability of these petitions is that the private respondents are holding public office posts and fall within the purview of sub-clause (1) (b) (ii) of Article 199 of the Constitution, 1973, which permits the High Court to issue a "Writ of Quo-warranto" requiring a person within territorial jurisdiction of the Court holding or purporting to hold a Public Office to show that under what authority , he can hold that office. It is also clear that, while acting under Clauses (b) (ii) of Article 199 of the Constitution, 1973 the High Court, if satisfied, could declare that holder of such Public Office is not entitled to hold such office. The aforesaid office, being a Public Office and for that reason is that the serving private respondents being holder of public office are amenable to writ jurisdiction of this Court under Article 199 of the Constitution, 1973. We are fortified in our contention by observations of the Honorable Supreme Court of Pakistan in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others [PLD 1975 SC 244]. In our view, a person invoking the jurisdiction of this Court under Article 199 of the Constitution of Pakistan for "Writ of Quo Warranto" is not required to fulfill the stringent conditions required for bringing himself within the meaning of an "aggrieved person". But, any person can move this Court and challenge usurpation or unauthorized occupation of a Public Office on the ground that he is not qualified to hold that public office. The Constitution does not mandate aggrieved person to invoke the jurisdiction of this court for the subject. As such, the issue of locus standi is insign ificant and immaterial. Besides, the proceedings in the instant petitions are in the nature of quo warranto, which are not strictly adversarial in nature, but it does not mean that a premium can be given to a civil servant to continue with such post, for which he is not qualified otherwise. 16. Taking up the issue of laches, in our view, laches does not apply to such writs and that a person does not have to be an aggrieved party to file such a writ as the cause of action is a recurring one as the public office is being held by a particular person, then the unlawful holding of public office is continuing wrong and the said wrong can be called in question by anyone at any time. The Constitutional petition in the nature of a writ of quo warranto is maintainable under Article 199 of the Constitution against a holder of a public office, if he is/was disqualified or did not possess or had lost his qualification, in such behalf; that a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available with this Court. In view of these observations, we hold that the petitions are maintainable and can be heard and decided on merit. 17. The moot questions involved in the present proceedings are as to whether the private Respondents who are holding the present postings qualify to continue the office? Whether the Chief Minister , Sindh is/was competent
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under the Rule 5(4) (b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964 to nominate person as Assistant Commissioner? Whether the Chief Minister is competent to grant exem ption to the private respondents from qualifying in passing the Departmental Examination prescribed for the posts under reference for regularization and promotion of the private respondents? 18. To elaborate on the aforesaid issues, let us have a glance on the Rule 5(4) (b)of the West Pakistan Civil Service (Executive Branch) Rules, 1964 which provides as under:- 5. Method of Recruitment-(I) Recruitment to the Service shall be made in the following manner:- (4) V acancies to be filled by promotion shall be filled as follows:- (b) The remaining 12 1/2 percent of such vacancies shall be filled from among persons whose names appear in Select List `B' & `C' to be maintained in accordance with clause (b) and clause (c) of sub rule (5) of this rule. 19. We have noticed that latest position of Rule 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, essentially provided that 12 1/2 percent posts of such vacancies shall be filled from amongst persons, possessing graduation degree, who hold posts of Assistants, Superintendents working in Secretariat and attached departments, Private Secretaries, Public Relations Officers to the Governor , Chief Minister and Ministers and Chief Secretary , considered fit, could be appointed by way of nomination against the post of Assistant Commissioner/Assistant Collector (BS-17) in Ex-PCS Cadre. The Select List "B" and "C" are maintained in accordance with clause (b) quota and clause (c) of Sub-Rule (5) of this Rule. The Honorable Supreme Court in the case of Criminal Original Petition No.89 of 2011 (2013 SCMR 1752 ) directed that the nominations made by the Chief Minister in excess of the quota given by Rule 5(4) (b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, are without lawful authority and directed Sindh Government to formulate mechanism for such appointments in future. An excerpt of paragraph No.1 10 of the judgment supra is reproduced as under:- "110. We may observe that nominations of Assistant Commissioners by the Chief Minister after exhausting his quota shall affect the seniority of the incumbents who will pass the P.C.S. exams on merits and appointed as Assistant Commissioners till 2017. Therefore, all the aforesaid officers inducte d in excess of the quota shall relegate to their original positions. In future, the Sindh Government shall formulate mechanism for nomination of such appointments by transfer to the post of Assistant Commissioner (BS 17) in Ex. PCS cadre." 20. Adverting to the second proposition that the private respondents were inducted in the service on permanent basis without qualifying the competitive examination and they also failed to pass/qualify the Departmental Examination for Assistant Collector Part-1 and II for their confirmation in service on regular basis, it appears from the record that by virtue of section 3 of the Sindh Public Service Commission (Functions) Rules, 1990, initial appointments in BPS-17 are to be made through the Sindh Public Service Commission. However , thereafter Rule 5 was added, which reads as follows:- "(5) The Chief Minister may, in the public interest, specify posts which may be filled, without reference to the Commission." 21. The said Rule was enforced at the relevant point of time having been subsequently omitted vide Notification No. SOR-I (S&GAD) 5/1-97 dated 18-2-1997. The said Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 empowers the Chief Minister , Sindh to take the post out of the purview of the Commission. In the instant…
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