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Official Citation: 2024 SHC 1349
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 452/2024 (D.B.) Sindh High Court, Bench at Sukkur - Muhammad Naeemuddin & Others (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1349. In this matter between Const. P. 452/2024 (D.B.) Sindh High Court, Bench at Sukkur - Muhammad Naeemuddin & Others (Petitioner) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Const. P. 452/2024 (D.B.) Sindh High Court, Bench at Sukkur CITATION: 2024 SHC SUK 1349 PARTIES: Muhammad Naeemuddin & Others (Petitioner) ORDER DATE: 21-MAY-24 BENCH: Hon'ble Mr. Justice Adnan-ul-Karim Memon, Hon'ble Mr. Justice Muhammad Abdur Rahman(Author) A.F.R: Yes ------------------------------------------------------------ 1 ORDER SHEET IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Constitution Petition No. D-452 of 2024 ( MuhammadNaeemuddin& othersVs. Province of Sindh & others)
DATE OF HEARING ORDER WITH SIGNATURE OF JUDGE
Before; Adnan-ul-Karim Memon, J; Muhammad Abdur Rahman, J;
Date of hearing : 02 May 2024.
Date of Announcement : 21 May 2024
Syed Israr Ahmed Shah, Advocate for the Petitioners.
Mr. Liaquat Ali Shar, Additional A.G, Sindh & Mr. Ali Raza Baloch, Assistant Advocate General, Sindh a/w Bhooral Mal Secretary Services & General Administration Department, Sanaullah Qazi Section Officer Services & General Administration Department and Mukhtiarkar New Goth on behalf of the Respondent No.5. ******** O R D E R.
MOHAMMAD ABDUR RAHMAN J:- The Petitioners have maintained this Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking the following relief:
“ … (a) This Honorable Court may kindly be pleased to declare, that the respondents' acts, omission, failure, or refusal, whereby they are not allowing the petitioners to join their respective services/jobs, which is illegal void, unlawful, abinitio, as all the four (4) cases of the petitioners for appointments, w as duly recommended by the District RecruitmentCommittee, through its approved minutes and the subsequent issuance of offer of appointment, such legitimate expectancy in favor of the petitioners were already on record and sufficient to claim there right, therefore cannot be curtailed or usurped.
(b) That this Honorable Court, may kindly be pleased to direct the respondents to allow the petitioners to Join their respective services/Jobs, as per their own (Public Health Engineering Department), recommendations of the District Recruitment Committee, and subsequent issuance of offer letter for the appointments, to the petitioners, for non-technical positions/posts as per the recommendations of DRC forthwith without any further delay.
(c) That this Honorable Court may also further be pleased to pass an order thereby holding that the order passed earlier in C.P. No. D-124 of 2023 and in C.P. No.D- 424 of 2019, passed by this Honorable Court's Divisional Bench, both dated 03 - 05-2023, regarding the recruitment guidelines and SOPs framed, still holds the field and has attained finality, therefore needs to be implemented in its letter and spirit, despite any order passed by any other court, except the Honorable Supreme Court.
(d) That this Honorable Court may also further be pleased to declare that the subject recruitments, nontechnical posts, BPS -01 to BPS -04, were being
2 conducted strictly in accordance with the directions issued by this Honorable Court on 03-05-2023, in CP No. D- 124 of 2023 and CP No. D-424 of 2019, for eligibility criteria, guidelines, and SOPs, for recruitments in BPS 01 to BPS-04, and BPS-5 to BPS-15, respectively
(e) That, this Honorable Court may also further be pleased to pass an order, whereby directions be issued to the respondents, including respondent No. 1, Chief Secretary Sindh, to continue with the recruitment process throughout Sindh, in view of the direc tions passed by this Honorable Court, in C.P. No D - 124 of 2023 and CP No D -424 of 2019, without being influenced by any other order, passed by any court, except the Honorable Supreme Court
(f) That this Honorable Court may kindly be pleased to pass an order whereby, declaring that the present petitioners have been appointedin accordance with the SOPs and Guidelines framed for such purpose, as per the instructions/directions of this Honorable Court, passed in CP No. D 124 of 2023 and C.P.No.D - 424 of 2019, on 03-05-2023
(g) That this Honorable Court, may also further be pleased to pass an order, declaring thereby that a Single Bench of this Honorable Court exercising its civil jurisdiction, under the Civil Procedure Code on Original Side cannot pass an order, in the presence of an order (referred above passed in C.P.No.D- 124 of 2023 and C.P.No D-424 of 2019, on 03-05-2023), passed by the Honorable Divisional Bench, exercising Constitutional Jurisdiction and only the order of Supreme Court can undo such order, which was earlier passed by the Divisional Bench of this Honorable Court
(h) That, this Honourable Court while exercising its Extra ordinary and vast Constitutional Jurisdiction, may kindly be pleased to pass an order, to do complete justice, whereby the rights created in favor of the petitioners, and thousands of similarly placed successful candidates, have been accrued as of today, in favor of the petitioners and thousands of other successful and eligible candidates, the ir rights, as stated above, shall not be prejudiced under any act or omission on part of any official respondents or any political party, whatsoever.
(i) That, this Honourable Court, as an interim measure may be pleased to direct the respondents to immediately allow the successful candidates including the petitioners, recommended by the minutes of DRC concerned and till final disposal of this case such DRC, minutes or offer letter shall also not be canceled or withdrawn.
(j) That, this Honourable Court may also be pleased to restrain the respondents from floating any fresh advertisement for the subject non-technical posts in BPS- 01 to BPS -04, as the petitioners rights and thousands of successful candidates having been created and the order being communicated to them, the right therefore created in such scenario, thus cannot be taken away, or be rescinded, under the garb of Section-21, of General Clauses Act, 1897, Doctrine of Locus Poenitentiae, the names therefore as fin alized by the DRCconcerned for successful candidates, and the subsequent issuance of offer letters, have created rights in favour of the petitioners which cannot be taken away, therefore the respondents may also kindly be strictly directed and restrained n ot to annul or cancel or scrap the whole of appointment process, which would be detrimental to the rights already accrued to the petitioners and thousands of others candidates, scattered throughout the province, prior to the passing of the order dated 09-08- 2023, passed by the Single Bench of this Honourable Court at Karachi, whose cases are akin to the cases of the present petitioners”
A. The Facts
2. A Suit bearing No. Nil (-1564) of 2023 (hereinafter referred to as the “Suit at Karachi”) has been presented before this Court at its principal seat at Karachi in its Original Civil Jurisdiction impu gning various advertisments for recruitment of
3 persons to be considered for employment by the Government of Sindh. Ex parte ad interim injunctive orders were passed on 9 August 2023 (hereinafter referred to as the “Order in the Suit”) in those proceedings as hereinunder:
“ … Points raised by the learned counsel require consideration. Let notice be issued to the defendants for 30.08.2023. Meanwhile the operation of all the advertisments attached as Annex C to C-93, D to D-6 and K to K-4 to the plaint and induction processes commenced by the defendants, Government of Sindh or any of its Offices, Autonomous and other Bodies, Departments and processes commenced through said advertisments are suspended till the next date of hearing”
The Petitioners are aggrieved by the Order in the Suit as they contend that they applied on the basis of the advertisments maintained in the Suit and were selected for employment but written orders confirming their employment are not being issued to them and instead oral representations are being made by the Respondents No. 4, the Respondent No. 5 and the Respondent No. 6 that such written orders confirming their employment cannot be issued on account of the Order in the Suit.
3. Mr. Syed Israr Ahmed Shah who has entered appearance on behalf of the Petitioners has contended that the Petitioners are not party to the Suit at Karachi and that as they are not party to those proceedings, the Order in Suit is not binding on them. He argued that the reliance by the Respondents No. 4, the Respondent No. 5 and the Respondent No. 6 on the order in the Suit was in effect a technicality and that they were delierberatly “creating hurdles” prejducing the Petitioners right to be appointed to government service. He submitted that the Order in the Suit being of an interim nature could not prevent this Court for exercising its jursidcition under Article 199 of the Constitutiuon of the Islamic Republic of Pakistan, 1973 . He concluded that a vested right had accrued in favour of the Petitioners as against the Respondents No. 4, the Respondent No. 5 and the Respondent No. 6 to secure their employment in government service and under the doctrine of locus poenitentiae they could not now be denied such an opportunity on account of the Order in the Suit.
4. The learned A dditional Advocate General has submitted that the Government of Sindh, SGA&CD had advised all departments of the Government of Sindh to expedite the process of recruitment against non-technical posts in BS- 01 to BS-04 through the respective Selection Committees after following all codal formalities. Accordingly, the Deputy Commissioner, Sukkur placed an advertisement dated 2 May 2023 for Walk-In Interviews on various dates including, but not limited to, an interview for the office of the Executive Engineer PHE Division
4 Sukkur on 20 May 2023 and which was, inter alia, impugned in the Suit at Karachi and which is subject to the Order in the Suit and which they were bound to follow.
5. We have heard the Counsel for the Petitioner and the learned Advocate General Sindh and have perused the record.
B. Concurrent Jurisdiciton
6. The issue in this Petition is as to whether this Court can or should exercise it’s jurisdiction under Artic le 199 of the Constitutiuon of the Islamic Republic of Pakistan, 1973 and by the exercise of which jurisdiction an order passed by this Court would directly or indirectly either decid e a separate lis or decid e an application in such a lis, which is pending before a nother C ourt of competent concurrent jurisdiction.
(i) Section 9 of the Code of Civil Procedure, 1908 and the Specific Relief Act, 1877
7. The original civil jurisdiction exercised by a court is invoked under Section 9 of the Code of Civil Procedure, 1908 and which reads as hereinunder:
“ … 9. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”
While in the rest of Pakistan such a jurisdiction is exercised by a Civil Judge or a Senior Civil Judge, however in respect of Karachi on account of Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 1962 the jurisdiction of the Civil Court is exercised by the High Court on the basis of a pecuniary valuation of a Suit. Such a jursidiciton is colloquially referred to as the “Original Civil Jurisdiction” and relief in which jursidiciton is regulated by the provisions of Specifc Relief Act 18 77 (hereinafter referred to as the “SRA, 1877”) . In respect of the enforcrement of public duties such a relief was regulated by Section 45 to 51 of the SRA, 1877, the provisions of which read as hereinunder:
“ … CHAPTER VIII OF THE ENFORCEMENT OF PUBLIC DUTIES.
45. Power to order public servants and others to do certain specific acts : The High Court of East Bengal may make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or interior Court of Judicature :
5
Provided— (a) that an application for such order be made by soine person whose property, franchise or personal right would be injured by the tbrbearing or doing (as the case may be) of the said specific act.
(b) that such doing or forbearing is, under any law for the time being in force clearly incumbent on such person or Court in his or its public character, or on such corporation in its corporate character ;
(c) that in the opinion of the High Court such doing or forbearing is consonant to right and justice ;
(d) that the applicant has no other specific and adequate legal remedy ; and
(e) that the remedy given by the order applied for will be complete. Exemptions from such powers : Nothing in this section shall be deemed to authorize the High Court—
(a) to make any order binding on the Central Government or any Provincial Government ;
(b) to make any order on any other servant of the Crown as such, merely to enforce the satisfaction of a claim upon the Crown ; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.
46. Application how made. Procedure thereon :
Every application under Section 45 must be founded on an affidavit of the person injured, stating, his right in the matter in question, his demand of justice and the denial thereof ; and the High Court may, in its discretion, make the order applied for abs olute in the first instance, or refuse it, or grant a rule to show cause why the order applied for should not be made.
Order in alternative : If, in the last case, the person, Court or corporation complained of shows no sufficient cause, the High Court may first make an order in the alternative, either to do or forbear the act mentioned in the order, or to signify some rea son to the contrary and make an answer thereto by such day as the High Court fixes in this behalf.
47. Peremptory order :
If the person, Court or corporation to whom or to which such order is directed makes no answer, or makes an insufficient or a false answer, the High Court may then issue a peremptory order to do or forbear the act absolutely.
48 Execution of, and appeal from, orders :
Every order under this Chapter shall be executed, and may be appealed from, as if it were a decree made in the exercise of the ordinary original civil jurisdiction of the High Court.
49 Costs :
The costs of all applications and orders under this Chapter shall be in the discretion of the High Court.
50 Bar to issue of mandamus
6 Neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus.
51. Power to frame rules : The High Court shall, as soon as conveniently may be, frame rules to regulate the procedure under this Chapter ; and until such rules are framed, the practice of such Court as to applications for and grants of writs of mandamus shall apply, so far as may be practicable, to applica tions and orders under this Chapter.”
(ii) Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973
8. Every High Court in Pakistan, under Article 199 of the Consitution of the Islamic Republic of Pakistan, 1973 (hereinafrer referred to as the “Constitution”) , has been conferred jurisdiction to redress grieviances as against a “person” as defined in Sub -Article (5) of Article 199 of the Constitution and which reads as hereinunder: “ … 199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a) on the application of any aggrieved party, make an order- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of
7 his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where- (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and (b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order- (i) would not have such effect as aforesaid;or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. (4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in part I of the First Schedule or relates to, or is connected with, State Property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made. (5) In this Article, unless the context otherwise requires, - "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b) in any other case, the Advocate - General for the Province in which the application is made.”
This jursidiciton of the High Court is colloquially referred to as the “Constitutional Jurisdiction of the High Court”.
(iii) The Repeal of Sections 45 to 51 of the Specific Repeal Act, 1877 and its impact on the Courts Jurisdiciton under Section 9 of the Code of Civil Procedure, 1908
9. As is apparent the above quoted provisions of the SRA, 1877 permitted a court to issue a writ of mandamus and which jurisdiction being concurrent could be exercised either by this Court in it’s Constitutional Jurisdiction or by a Civil Court in it’s Original Civil Jurisdiciton. The overlap between the two jurisdictions created
8 problems, none more so than on account of the bar to jurisdiction contained in Section 51 of the SRA, 1877 and also on account of Article 201 of the Constitution whereby the decision of this Court, to the extent that it decided a principle of law, would bind the Civil Court. Possibly, on account of this overlap, Sections 45 to 51 of the SRA, 1877 were repealed by Section 3 read with the IInd Schedule of the Federal Laws (Revision and Declaration) Ordinance, 1981 1 prima facie with the intent of leaving the jurisdiction to issue such directions with the High Court in it’s Constitutuinal Jurisdiciton.
(iv) The Problem created by the Repeal of Sections 45 to 51 of the Specific Repeal Act, 1877 and the Interpretation of Section 42 of the Specific Relief Act, 1877
10. In practical terms, however various problems remained unattended to by the legislature. The Constitutional Jurisdiciton of this Court, aside from being discretionary, cannot be invoked for example where disputed questions of facts arise requiring evidence to be adduced and hence in cases where there were such a dispute, relief could not be granted by this Court in its Constitutional Jurisdiciton. It would therefore seem than an anomalous situation could occur that persons who sought to enforce their rights in the Constitutional Jurisdiction of this Court, which would include the enforcement of their fundamental rights as guaranteed under the Constitution, could not avail such a remedy before this Court in its Constitutional Jurisdiciton on account of such a bar and could also not obtain such relief in a courts Original Civil Jursidiction on account of the repeal of Section 45 to 51 of the SRA, 1877. This was primiarily on account of the fact that to obtain either a mandatory or a prohibitory injuncti on under Chapter IX and Chapter X of the SRA, 1877 a person would have to apply for a declaration under Section 42 of the SRA, 1877 to show their “legal character” or “right to a property” and only once established could such injunctive relief be sought. As is apparent it would be quite difficult at times to identify “legal character” or “right to a property” in terms of administrative actions or in terms of fundamental rights within such perimeters and which in effect deprived persons of a remedy.
11. This “wrong” was corrected by two judgments of this Court. The first is an order of Ata ur Rehman J., in the decision reported as Messrs H.A. Rahim & Sons
1 See also Report 9 of the Law Commission of India available at https://www.advocatekhoj.com/library/lawreports/specificreliefact/index.php?Title=Specific%20Relief%2 0Act,%201877
9 vs. Province of Sindh and another 2 in which where the vires of a law was challenged in the Original Civil Jurisdiction of this Court it was held that:
“ … 9. There is another aspect of the matter. The present suit has been filed for declaration and permanent injunction. A suit for declaration would lie under section 42 of the Specific Relief Act whereunder persons seek declaration with regard to their legal character in the sense of status or with regard to any right to property. The case of Muhammad Farooq Khan v. Sulaiman A.G. Punjurani PLD 1979 Kar. 88 is referred. The term right to, property can mean both tangible and intangible rights. In coming to this conclusion reliance is placed on the case of T.J. Trust, Bombay v. CIT (Appeal) PLD 1958 SC (Ind :) 140 and Ahmed Arif v. CWT (1969) 2 CC, 471, wherein it has been held that the term property is a term of the widest import, and subject to any limitation or qualification which the context might require, it signifies every possible interest which a person can acquire, hold or enjoy. In case of Ahmed Ali v. The State PLD 1957 Lah. 207 it…
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