Full Judgment Text & Judicial Ruling

Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Anwar Hussain Title:Malik Naeem lqbal and Muhammad Saleem Khaskheli for Petitioners (in

C.Ps.Nos.D-6723 and 7848 of 2015).Abrar Hasan for Petitioners (in C.Ps.Nos.D-6600, 6630 and 6675 of 2015).Abdul Salam Memoii for Petitioner (in C.P. No,D-525I ofAnand Kumar for Petitioners (in C.Ps. Nos.D-7034 and 7083 of2015). vs PROVINCE OF SINDH through Chief Secretary and others Case No.:Constitutional Petitions Nos.D-5251 of 2014, D-6600, D-6630, D-6675, D- 6'123, D-7034, D-7083 and D-7848 of 2015 Date of Judgment:2016-03-04 Reported As: 2016 PLC (C.S.) 787 Result: Petitions dismissed Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.--- The petitioners have brought aforesaid petitions and in one voice they have challenged the advertisements published in the various newspapers for inviting applications for the appointments of the Chairman, Controller of Examinations, and Secretary of the Board of Technical Education and Boards of Secondary and Intermediate Education. The brief facts of each petition are mentioned separately as under:- (1) C . P. No, D-6723 of 2015 ' In pursuance of Sections 14 and 15 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, the petitioner was appointed as Chairman, Board of Secondary Education, Karachi vide Notification dated 19.6.2015 with effect from 29.6.2015 for a period of two years. The respondent No,2 issued an advertisement in the newspapers on 25.09.2015 for appointment in Board of Secondary Education Karachi. The petitioner is aggrieved by this advertisement and asserted that during his tenure of appointment as Chairman he has legitimate expectation to complete his tenure; therefore, this advertisement is illegal. (2) C . P. No . D-7848 of 2015 ' In this case vide Notification dated 3.6.2015, the petitioner was appointed as Chairman, Board of Intermediate Education, Karachi with effect from 20.6.2015 for a period of three years. It is

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contended by the petitioner that under Section 15 (1) of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, the Chairman shall hold office for a term of three years. The petitioner is aggrieved by the same advertisement dated 25.09.2015. (3) C . P . No . D-6600 of 2015 ' In this case vide Notification dated 13.10.2014, the petitioner who was already performing his duties as Deputy Controller of Examination, Board of Intermediate and Secondary Education, Hyderabad was assigned an additional charge of vacant post of Controller of Examination, BISE Hyderabad as an interim arrangement with effect from 14.10.2014 till further orders. The claim of the petitioner in this case is that by virtue of his seniority, educational qualification and the rules of the Board he is entitled to be promoted permanently as Controller of Examination in Grade 19. (4) C . P. No . D-6630 of 2015 ' In this case vide Notification dated 22.6.2015, the petitioner was appointed as Chairman, Sindh Board of Technical Education, Karachi on contract basis for a period of three years with effect from 29.06.2015. His tenure will expire on 28.6.2018 but he shocked to see the advertisement dated 25.9.2015 for inviting applications to fill the post of Chairman, therefore, he has prayed that the advertisement to the extent of his post of chairman shall be declared unlawful. (5) C.P.No,D-6675 of 2015 ' In this case the vide Notification dated 9.12.2014, the petitioner was appointed as Secretary, Sindh Board of Technical Education, Karachi, however, vide notification dated 16.05.2015 in addition to his normal duty as Secretary he was also given the additional charge of the post of Chairman, Sindh Board of Technical Education, Karachi with effect from 18.05.2015 by the controlling authority. He has also impugned the advertisement dated 07.10.2015 whereby applications were invited for the posts of Secretary and Controller of Examinations of different boards including Sindh Board of Technical Education, Karachi. (6) C.P.No,D-5251 of 2014 ' Vide Notification dated 16.12.2013, the petitioner was already holding the post of Deputy Secretary (Establishment), Board of Intermediate and Secondary Education Sukkur but he was assigned additional charge of Controller of Examinations as an interim arrangement with immediate effect and till further orders. The claim of the petitioner is that under the ' Sindh Boards of Education Employees Service Rules, 2013 it is clear that the posts of Secretary and Controller of Examinations are filled by promotion and seniority cum fitness basis on the recommendations of appointment committee. (7) C.P.No.D-7034 of 2015 ' In this case vide Notification dated 14.9.2015 the petitioner, who was holding the post of Deputy Controller of Examination (Coordination) BISE, Larkana was assigned additional charge of Controller of Examinations as a stop gap arrangement till further orders. He has also claimed that being Deputy Controller he is eligible for the promotion to the post of Controller of Examination, which is under the domain of appointment committee. (8) C.P.No.D-7083 of 2015 ' Vide Notification dated 20.8.2015 on the recommendation of Chairman, Board of Intermediate and Secondary Education, Larkana the petitioner was assigned the additional charge of Secretary in addition to his duties as Deputy Secretary as stop gap arrangement till further orders. He has also claimed that the appointment to the post of Secretary should be made on the basis of promotion and seniority cum fitness. He has also challenged the advertisement published for inviting applications. 2. Malik Naeem Iqbal, learned counsel for the petitioners in C.Ps.Nos.D-6723 and 7848 of 2015 argued that Board of Secondary Education is a statutory body constituted under the provisions of "The Sindh Boards of Intermediate and Secondary Education Ordinance, 1972". Initially the Governor

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of Sindh was the controlling authority, however, pursuant to an amendment made in the year 2011, now the Government of Sindh is controlling authority under Section 12. He further argued that the Chairman of the Board is whole time officer appointed by the controlling authority under Section 15(1) of the aforesaid Ordinance. The tenure of the post of Chairman is for three years from date of notification which is a permanent post. Both the petitioners were appointed under a valid administrative process and they are performing their duties with utmost care and best of their performance. Despite that the advertisement was published in the newspapers for the new induction on the same posts. The purpose of providing a fix tenure is to maintain the transparency and to ensure that the incumbent may perform his duties diligently without any undue interference. The release of advertisements for inviting applications in the newspapers is meant to curtail the fix tenure of the petitioners and also amounts to make an attempt of premature retirement. No termination notice was ever served upon the petitioners before publishing advertisement in the newspapers and their appointment is still intact. The advertisements are in violation of the provisions of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. The appointing authority cannot be allowed to exercise their discretion at their whims or in an arbitrary manner but they are required to act fairly and justly. A person who has been appointed to hold a tenure post must be allowed to complete his tenure of service in accordance with the terms of his appointment. Adopting a new procedure for appointment is alien to Ordinance, 1972 and if the controlling authority wants to introduce a new procedure that should be applicable prospectively and not retrospectively which means the petitioners have legitimate expectation to complete their fixed tenure without any interference. Learned counsel has also shown us apprehension that new process of appointment has been introduced to accommodate and favour the blue eyed persons of the competent authority. He further argued that no rules and regulations are available to regulate the appointments through competitive process. In support of his arguments, the learned counsel for the petitioners referred to the following case-Law:- (1) PLD 2014 Islamabad 38 (Muhammad Tariq Malik, v, Pakistan through Secretary Establishment Division and others). Constitutional petition. Chairman, National Database and Registration Authority (NADRA). Removal from office. Notification of petitioner's appointment showed that he was appointed as Chairman, NADRA in accordance with Section 3(5) of National Database and Registration Authority Ordinance, 2000, and said post was a tenure post. Petitioner could not have been removed from office of Chairman except by adopting the procedure for termination from such office provided under Section 3(12) of National Database and Registration Authority Ordinance, 2000. Instead of following the law Federal Government had adopted a threatening attitude, which indicated that the Government frightened the petitioner with regard to his future actions in case he decided contrary to the wishes of the Government. (2) PLD 2013 SC 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan). (commonly known as Anita Turab case) Tenure, appointment, promotion and posting/ transfer are of utmost importance in the civil service. If these are made on merits in accordance with definite rules, instructions etc. The same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. We are aware that matters relating to tenure etc. Cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance. (3) PLD 1965 SC 106 (Government of West Pakistan and Accountant General West Pakistan Lahore v. Nasir M. Khan). Constitution of Pakistan (1962) Article 178(3) read with Article 98. No specific rules in

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existing governing rate of increment during officiating charge. Rules cannot be changed with retrospective effect. (4) 2012 SCMR 864 (Senior Member BOR and others v. Sardar Bakhsh Bhutta and another). Insertion or deletion of any provision in the Rules or the law, if merely procedural in nature would apply retrospectively but not if it affected substantial rights, which already stood accrued at the time when the unamended rule or provision was in vogue. 3. Mr. Abrar Hasan, learned counsel for the petitioner in C.P.No.D-6600/2015 argued that before the appointment of the Deputy Controller of Examinations of the Board, the petitioner was Lecturer for the last 14 years, however he selected to hold the post of Deputy Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad. The petitioner is senior most Deputy Controller of Examinations in grade-18, therefore, on the eve of retirement of the Controller the petitioner was assigned additional charge of Controller of Examinations till the completion of competitive process for the appointment of Controller of Examinations. He further argued that keeping in view the seniority and educational qualifications the petitioner is entitled to be promoted permanently as Controller of Examinations in grade-19. He also referred to the Sindh Boards of Education Employees Service Rules, 2013 and argued that under these rules the method of recruitment of the Controller of Examinations of BPS-19 is by promotion on seniority cum fitness basis on the recommendation of appointing committee and the requirement of experience if any may be relaxed at the discretion of the Board. When a post is to be filled by promotion then there was no justification to invite applications for the appointment of Controller of Examinations without considering the qualification and experience of the petitioner who has legitimate expectation of promotion from the post of Deputy Controller to the post of Controller of Examinations. 4. So far as the case of petitioner in C.P.No.D-6630/2015, the learned counsel argued that the petitioner was earlier appointed as Chairman, Board of Secondary Education Karachi on 29.6.2012, thereafter, vide notification dated 22.6.2015 he was appointed as Chairman, Sindh Board of Technical Education, Karachi on contract basis for a period of three years with effect from 29.6.2015. The tenure of the petitioner will expire on 28.6.2018. The respondents have no justification to give the advertisement for the same post. The so called competitive process has been initiated to appoint favorites of controlling authority. 5. The learned counsel further argued that keeping in view of special qualification in the engineering and the credentials, the petitioner in C.P. No.D-6675/2015 was appointed Secretary, Sindh Board of Technical Education for a period of three years. After his retirement from CDGK, he was employed for certain other assignments as Adviser Engineering, Sindh University Jamshoro and Adviser (Planning and Development), University of Karachi, thereafter, he was appointed Secretary to the Sindh Board of Technical Education, Karachi for a period of three years. The appointment is the prerogative of the appointment committee under the regulations of the Board and it has exclusive powers, therefore, any other parallel body constituted for this selection is totally unlawful and in violation of the regulations of the Board. 6. Mr. Abdul Salam Memon, learned counsel for the petitioner in C.P.No.D-5251/2014 argued that the petitioner is a permanent employee of the Board of Intermediate and Secondary Education, Sukkur since 1979. Presently he is working as Deputy Secretary and also holding additional charge of Controller of Examinations BPS-19. He further argued that in view of Sindh Boards of Education Employees Service Rules, 2013, the appointing authority of Secretary and Controller of Examinations is Board through appointment committee. Though the petitioner is having additional charge of Controller of Examinations, Board of Intermediate and Secondary Education, Sukkur as an interim arrangement, but the regular appointment to this post may be made only through promotion. A post which is to be filled by promotion cannot be filled by direct induction. In fact the petitioner has

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been denied his right of promotion to the post of Controller of Examinations. In support of his arguments, he relied upon the following case law: ' 2010 SCMR 1301 (Tariq Azizuddin and others: in re. Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009 decided on 28th April, 2010). Section 9 Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Promotion. Selection Grade. Basic Scales 21 to 22. Provisions of Section 9 of Civil Servants Act, 1973, mainly deal with promotion up to Basic Scale- 21 procedure whereof has been laid under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Presently rules are not available for promotion to selection grade i.e. From Basic Scale- 21 to Basic Scale-22. In absence of any rules for promotion to Basic Scale-22, reliance has to be placed on Section 9(2)(a)(b) of Civil Servants Act, 1973, according to which in case of selection post, selection has to be made on the basis of merit and in case of non-selection post on the basis of seniority cum fitness. There are no rules for promotion to selection post of Grade-22, meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in judge made law by full application of mind. 7. Mr. Anand Kumar, learned counsel for the petitioner in C.P.No.D-7034/2015 argued that the petitioner was appointed as Assistant Controller of Examinations in the year 1996, thereafter, he was promoted to the post of Deputy Secretary in the year 2005. Due to his good performance and dedication he was assigned the additional charge of Controller of Examinations vide Notification dated 14.9.2015. The post of Controller of Examinations cannot be filled through direct appointment. He also referred to the Sindh Boards of Education Employees Service Rules, 2013 that for appointment of Secretary and the Controller of Examinations the appointing authority is the Board. So far as the petitioner in C.P.No.D-7083/2015 is concerned, the learned counsel argued that this petitioner has been given additional charge of the Secretary in addition to his duties as stop gap arrangement. Since the perst of Secretary as well as the Controller of Examinations are to be filled by promotion therefore no direct recruitment or appointment can be made on these posts. 8. Mr. Mukesh Kumar Karara, learned AAG referred to the Section 14 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 and argued that under the purview of this Section the Chairman, Secretary, Controller of Examinations and Audit Officer are appointed by the controlling authority on such terms and conditions as may be determined by the controlling authority. All the petitioners were appointed without any competitive process. The controlling authority reviewed all the appointments in education boards and decided that all appointments must be made through competitive process and earlier appointments should be cancelled. Various applications have been received and the persons were called for interviews. The maximum age limit of 62 years has been prescribed for the post of Chairman. One of the petitioners, Professor Anwar Ahmed Zai has already crossed the age of 70 years who is also a retired Government Servant. He has already enjoyed three terms as Chairman. He further argued that the hon'ble Supreme Court of Pakistan in Suo Motu Case No.16/2011 has discouraged the re-employment. The controlling authority has decided to fill all the posts through a competitive process on merits in a transparent manner. This competitive process has been initiated across the board keeping in view the directions of the hon'ble Supreme Court that all posts should be filled after giving advertisement in Media, so that everybody shall have an equal opportunity to apply on merits. He further argued that most of the persons were enjoying the posts on a contract basis which cannot be enforced through writ petition and if the petitioners have any grievance regarding their contractual engagements and its terms and or violation for which they may claim the damages but no declaratory or injunctive relief through constitution petition. The controlling authority has constituted a search committee to ensure that the appointments are made on merits. He further argued in relation to the petitioner in C.P.No.D-7848/2015 (Muhammad Akhtar Ghouri) that Muhammad Aminul Haq has filed C.P.No.D-4203/2015 to challenge the appointment of

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Muhammad Akhtar Ghouri as Chairman, Board of Intermediate Education Karachi on the ground that he has been performing his duties as Secretary to the Governor of Sindh and without obtaining no objection/clearance of Government of Sindh, he has been appointed Chairman, Board of Intermediate Education Karachi. Even for this appointment, no competitive process was initiated, but the appointment was made on pick and choose basis. The petitioner is also a BPS-20 officer of Provincial Secretariat Service (PSS)-and if his contract as Chairman, Board of Intermediate Education Karachi is terminated he will not become jobless but revert back to his parent department for further posting. In fact his appointment is also in violation of the judgment of the hon'ble Supreme Court reported in 2013 SCMR 1205. So far as the petitioners holding the post on stop gap arrangements or additional charge, the learned AAG argued that a person who is holding additional charge as stop gap arrangement cannot claim any vested right to permanency. He also refuted the existence of 2013 Rules which according to him are non-statutory and never approved by the Government. He further argued that under the Act these posts are for direct recruitment and not through promotion, therefore, the alleged rules are in conflict with the parent Act and has no legal sanctity as it is well settled proposition of law that Act will prevail on the rules. Any petitioner who is holding additional charge or any charge on stop gap arrangement may also apply to the post under the competitive process and their applications will also be considered by the controlling authority. Mr. Ali Azhar Tunio, learned counsel for the Respondent No.3 in CP.No.D- 7083/2015 adopted the arguments of learned A.A.G. The learned A.A.G. Referred to the following case law:- (1) PLD 2010 Supreme Court 841 (Abid lqbal Hafiz and others v. Secretary; Public Prosecution Department, Government of the Punjab, Lahore and others). Article 199. Constitutional petition. Petitioners were appointed on contract basis, who assailed the act of authorities for advertising posts in question for regular appointments. Plea raised by petitioners was that their services could not be terminated by authorities. Validity. Having accepted conditions of service, petitioners had no locus standi to file constitutional petitions seeking writs of prohibition and mandamus to authorities to refrain from terminating their services and to retain them on their existing posts on regular basis. (2) 2001 PLC (C.S.) 249 (Mai. (Retd.) Shehzad Hussain Khan v. Government of the Punjab and others). Constitutional petition. Contractual liability. Deciding of such matter amounts to make an order for specific performance of contract and as such the same is not possible in exercise of Constitutional petition. Contractual appointment, termination of. Doctrine of locus poenitentiae belong % to genes of estoppel by record but is hardly attracted where both parties are equally placed to frustrate the terms of agreement. Where suit for damages is appropriate remedy, doctrine of locus. Poenitentiae is of limited application. (3) 2012 PLC (C.S.) 172 (Trustees of the Port of Karachi v. Saqib Samdani). Section 4. Contract employee. Reinstatement in service. Respondent was employed on a contract of one year, whereafter, he was terminated from service. Respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service. Respondent was not appointed as regular employee against any particular quota to give him a valid cause of action. 9. Heard the arguments. To start with we would like to have a flip through few provisions of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. Under clause (g) of Section 2 "Controlling Authority" means the Controlling Authority of a Board while under Section 12 the Governor of Sindh or his nominee was the controlling A authority of a board, however, by virtue of Sindh Boards Intermediate and Secondary Education (Amendment) Act, 2008, notified on 15.7.2011, the "Government is the controlling authority under Section 12 instead of "Governor of Sindh". Under Section 14 of the aforesaid Ordinance the list of officers of the Board is provided which is reproduced as under:-

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"14.(1) The following shall be the officers of the Boards:- (i) The Chairman; (ii) The Secretary; (iii) The Controller of Examinations: (iv) The Audit Officer: and (v) Such other officers as may be appointed by the Board (2) The Chairman, the Secretary, the Controller of Examinations and the Audit Officer shall be whole-time officers and shall be appointed by the Controlling Authority on such terms and conditions as may be determined by it." ' Whereas Section 15 provides the term of office of Chairman which is also reproduced as under:- "15.(1) The Chairman shall hold office for a term of three years from the date of notification of his appointment and on the expiry of the term of office shall be eligible for reappointment for such further period as may be specified in the order of appointment. (2) When the office of the Chairman is vacant temporarily or otherwise, by reason of leave, illness or other cause, for a period not exceeding one year, the Controlling Authority, shall make such arrangements for carrying on the duties of the office of the Chairman as it may think fit. (3) The Chairman shall be the principal executive and academic officer of the Board and shall, when present, preside at the meetings of the Board or a committee. (4) It shall be the duty of the Chairman to ensure that the provisions of this Ordinance and the Regulations and Rules are faithfully observed and carried out, and he shall exercise…

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