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Official Citation: 2023 LHC 4399
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-08-09
Parties: Tanveer Sarwar vs Government of Punjab and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-08-09, officially reported as 2023 LHC 4399. In this matter between Tanveer Sarwar and Government of Punjab and others, 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.
Case cited as 2023LHC4399
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Tanveer Sarwar vs Government of Punjab and others Case No.: Writ Petition No. 63900/2021 Date of Judgment:2023-08-09 Reported As: 2023 LHC 4399 Result: Petition Disposed of
JUDGMENT
"If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difference lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself." James Madison[1] JUDGMENT Tariq Saleem Sheikh, J. The Petitioner, a professional lawyer, has challenged the appointments of 22 officers (Respondents No.3 to 24) made in their own pay and scale ("OPS") in the Punjab against various posts made through four notifications. He contends that the concept of OPS is alien to the law. Neither Punjab Civil Servants Act 1974 ("PCS Act") nor Punjab Civil Servants (Appointments and Conditions of Service) Rules 1974 ("PCS Rules") allows such appointments. He argues that it is an artifice to favour blue-eyed officers and breeds a culture of nepotism and favouritism. 2. OPS connotes appointing a civil servant against a post higher in scale than his basic pay scale. For example, appointing a BS-19 officer against a BS-20 or a higher position. 3. This Court admitted this petition to a regular hearing by order dated 20.09.2022 and directed the Respondents to file written statements. Since this petition involved important questions requiring interpretation of the Constitution and statutory law, notice was also issued to the Advocate General Punjab under Order XXVII-A CPC. 4. The Government submitted its written statement strongly opposing this petition. It contends that the Petitioner lacks locus standi to file it because he is not an aggrieved person within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"). Furthermore, it is mala fide and based on ulterior motives. According to the Government, there is a severe scarcity of officers in BS-19 and above. It has repeatedly requested the Establishment Division, Government of
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Pakistan, Islamabad, to post officers of the Pakistan Administrative Service as per its share in the provincial sub-cadre. However, the Federal Government is also short on officers, so the Establishment Division could not post the requisite number of officers in the Punjab. In these circumstances, the Punjab Government is occasionally constrained to post "suitable/competent officers" on an OPS basis in the public interest to manage public affairs and ensure that the administration runs smoothly. Such appointments are permitted under the Service and General Administration Department's Notification No.SOR.I(S&GAD)-16-70/77 dated 17.05.1982, and the Finance Department's Office Memorandum No.F.8(4)R-2/97-1204/ 2009 dated 24.02.2009 and Policy Letter dated 16.12.2009. The Government has further stated that seniority, service record, integrity, experience/ achievements, qualifications and recommendations, if any, from any department/organization are all taken into account when making OPS appointments. 5. The Government has defended the OPS postings of Respondents Nos. 3 to 24, claiming that the Competent Authority appointed them in conformity with law and policy and that they are in the public interest. 6. Although notices were issued to all the respondent officers, only Respondents No.12, 15, and 24 have submitted their written statements. According to them, section 9 of the PCS Act mandates that every civil servant shall be liable to serve anywhere within or outside the province and in any post under the Government of the Punjab, the Federal Government, any Provincial Government or a local authority or a corporation or a body set up or established by any such Government. They state that they have assumed charge of their current posts in compliance with the orders issued by the Competent Authority, which are in accordance with the law, rules and policy. 7. On 13.01.2023, this Court directed the Chief Secretary of the Punjab to furnish a list of all the officers posted on the OPS basis in the province. His report revealed that currently there are 183 such officers, including Respondents No.3 to 24. On 09.02.2023, this Court directed the office to issue them notices to be served through the Chief Secretary. It further directed that the officers in question file a reply/written statement to this petition, if so advised. On 17.02.2023, Ahmed Hassan Shahzad, Deputy Secretary, Service and General Administration Department (S&GAD), submitted a report confirming that the Chief Secretary has issued notices to the aforesaid officers. None of them has joined these proceedings except three whom the Petitioner had arrayed as Respondents No. 12, 15 and 24. 8. On 24.02.2023, this Court appointed Mr Muhammad Shahzad Shaukat, Advocate, as amicus curiae. Advocate General's submissions 9. Mr Muhammad Shan Gul, Advocate General Punjab, has submitted a written note in response to the notice under Order XXVII-A CPC and addressed the Court on 09.03.2023. According to him, the PCS Act and the PCS Rules did not originally include any provision for appointing junior officers to higher-level positions. However, due to the necessity and unavailability of officers of proper scale, the Government was sometimes compelled to nominate officers of lower level to higher offices. This stopgap arrangement did not grant them the right to receive pay/salary of the higher scale or seniority, so such appointments were termed "own pay and scale" appointments. On 17.05.1982, S&GAD issued Notification No. SOR.I (S&GAD)-16-70/77 to streamline the procedure for such appointments. Subsequently, the Government determined that the said notification was insufficient to provide the proper legal mandate for OPS appointments, so it inserted Rule 10-A in PCS Rules vide Notification No. SOR-III-1-14/75 dated 26.02.1983. Rule 10-A caters to two situations: (a) when the post is to be filled by departmental promotion, and (ii) when the post is to be filled through initial recruitment. In both cases, it provides that the most senior officer eligible for promotion should be appointed. Mr Gul submits that the Government always strives to ensure that the officers of the right grade are posted against vacant seats, but where the unavailability of suitable officers poses a hurdle, the senior-most officer of the lower scale might be posted. Through Notification No. SOR.I (S&GAD)16-70/77-1 dated 01.05.2000, S&GAD called for strict adherence to the procedure laid down in Rule 10-A. Mr Gul points out that Rule 10-A is not the only provision that allows for a deviation from the normal and preferred method of appointment of suitable officers. Rule 10-B of the PCS Rules (inserted on 04.09.1994) authorizes appointment on a current charge
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basis of the most senior available civil servant (eligible for promotion) if the post (should be filled) is expected to remain vacant for less than a year. Rule 13 also permits that if a post becomes vacant due to deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the incumbent, the most senior civil servant can be appointed by promotion on officiating basis. 10. The Advocate General contends that the instructions issued by the Government and notified in the Esta Code are considered statutory and have the force of law. Hence, the appointments of officers in their own pay and scale, which are made in accordance with the instructions contained in notifications dated 17.05.1982 and 01.05.2000, are unexceptionable. He has relied upon Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat, and another (PLD 1974 SC 291), Muhammad Afzal and another v. Government of Balochistan through Secretary, Services and General Administration Department, Quetta and others [1995 PLC (C.S.) 567], and Fazali Rehmani v. Chief Minister, N.W.F.P. and others (PLD 2008 SC 769) in support of his argument regarding the legal status of the aforesaid instructions. 11. The Advocate General concludes that the term "own pay and scale" is only used to assert that there is no right to claim either the higher post's salary or seniority from the date of appointment to the higher scale. This expression is only used to make the appointee aware of the conditions mentioned in Rule 10- A(5), which states: (5) No appointment on acting charge basis shall be made without the recommendations of the Departmental Promotion Committee or the Provincial Selection Board as the case may be, but such appointment shall not be deemed to have been made on a regular basis for any purpose nor shall confer any right for regular appointment. Submissions of the amicus curiae 12. Mr Muhammad Shahzad Shaukat, Advocate, submits that the PCS Rules provide a comprehensive mechanism that should be adopted when a post is required to be filled and no suitable officer is available for appointment. The concept of OPS has no legal backing. He has pointed out that in paragraph-3 of the notification dated 01.05.2000, S&GAD declared that "appointment to a higher post in own pay and grade has no meaning in law, therefore, this practice should be discontinued." In these circumstances, all OPS appointments are illegal and without lawful authority, and the Government should be permanently restrained from making such appointments. He agrees with the Petitioner's counsel that it spawns nepotism and favouritism, eventually leading to bad governance. Opinion of the Court 13. The Government has objected to the maintainability of this petition. I must address this issue first. 14. The present petition is in the nature of Public Interest Litigation ("PIL"). Halsbury's Laws of India states that "lexically, the expression 'public interest litigation' means a legal action initiated in a court of law for the enforcement of public or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liability are affected."[2] Dr Faqir Hussain states that "the raison d'tre of public interest litigation is to break through the existing legal, technical, and procedural constraints and provide justice, particularly social justice, to a particular individual, class, or community who, on account of any personal deficiency or economic or social deprivation or State oppression are prevented from bringing a claim before the court of law."[3] The courts consider PIL a "part of the process of participative justice"[4] and an extremely important jurisdiction.[5] 15. In law, "locus standi means the right to bring an action, to be heard in court, or to address the court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case."[6] In S.P. Gupta vs President of India and others [1981 Supp. SCC 87 : AIR 1982 SC 149)], the Supreme Court of India held that the traditional rule regarding locus standi is that judicial redress is available only to a person who has suffered a legal injury to property, body, mind or reputation as a result of any violation, actual or threatened, of the legal right or legally protected interest. This principle is, however, relaxed where an act or omission of the State or a public authority in violation of the
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Constitution or the law causes a public wrong or public injury. In such instances, any member of the public acting in good faith, who is not merely a busybody or a meddling interloper, but has sufficient interest in the proceeding, may file an action. The threat of legal action will compel public officials to act with greater responsibility and care, thereby improving the administration of justice. The Supreme Court also cited the following observations of Lord Diplock from Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 (at p.740): "It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped ... It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the court is the only judge." 16. Nonetheless, the courts have always emphasized that they should not allow their process to be abused through PILs. In S.P. Gupta, the Supreme Court of India stated that the court must ensure it is bonafide and not for personal gain, private profit, political motivation, or any other oblique consideration.[7] In Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482), the Supreme Court of Pakistan held that a person could invoke the constitutional jurisdiction of the superior courts as pro bono publico, but he must first demonstrate that he is prosecuting in the public interest and for the public good, or the welfare of the general public.[8] In Muhammad Shafique Khan Sawati v. Federation of Pakistan (2015 SCMR 851), the apex Court emphasized that in a PIL action, a citizen must demonstrate that it is bonafide and that he is pursuing it to promote public welfare, not private or vested interest. In Premier Battery Industries Private Limited v. Karachi Water & Sewerage Board and others (2018 SCMR 365), the Supreme Court held that PIL had received judicial recognition enabling the courts to enlarge the scope of the meaning of "aggrieved person" under Article 199 of the Constitution of 1973 to include a public-spirited person who brings to the court's notice a matter of public importance requiring enforcement of fundamental rights. However, the superior courts should exercise constitutional jurisdiction with care, prudence, and circumspection. They should not take on any speculative, hypothetical, or malicious litigation that would obstruct the Government from performing its executive functions. 17. The Petitioner seeks a writ of quo warranto through this petition. In such cases, as we shall see in the next few paragraphs, the principle of locus standi is further relaxed. Halsbury's Laws of India explains quo warranto as follows:[9] "Quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against the law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reason of its apathy."[10] 18. The Constitution of Pakistan (1973) empowers the High Court under Article 199(1)(ii)(b) to issue an order "requiring a person within the territorial jurisdiction of the Court holding a public office to show under what authority of law he claims to hold that office." The Constitution expressly states that the individual applying for an order under the said Article need not be an "aggrieved person". In Malik Asad Ali and others v. Federation of Pakistan and others (PLD 1998 SC 161), the Supreme Court ruled that quo warranto proceedings confer jurisdiction and authority on superior courts to control executive action in
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making appointments to public offices against the relevant statutory provisions. These proceedings are a bulwark against usurpers of public offices, who may be allowed to occupy positions in connivance or with the help of the executive authority in some cases. In Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi, and others (2023 SCMR 162), the Supreme Court held that there is no legal necessity that the person applying for a writ of quo warranto should be an "aggrieved person" in the literal sense. Further, he is not required to demonstrate that he has a special interest in the matter or to explain which of his legal rights has been infringed. It is enough that the relator is a member of the public and acts bonafide. This writ is more akin to public interest litigation, in which an individual seeks to remedy a wrong or vindicate a right for himself, for the good of society, or as a matter of principle. In Barrister Sardar Muhammad v. Federation of Pakistan and others (PLD 2013 Lahore 343), a learned Judge of this Court stated: "The object of this constitutional remedy is to protect the sanctity of the 'public office' by safeguarding against unlawful appointments. The constitutional objective appears to be more institutional. Acting as gatekeepers, the constitutional courts protect the sanctity of a 'public office' and, as a result, shield public institutions from usurpers. The constitutional obligation is to ensure that persons selected to man public institutions are appointed in accordance with the law without the slightest taint of impropriety. It is also a constitutional platform for the 'whistle-blowers' to come forward in public interest and raise their concern about wrongdoing within organizations.[11] The result is that institutions/ organizations are more open and accountable to their employees, shareholders and the greater public in their activities." 19. I may now refer to a few cases which outline the nature and scope of quo warranto proceeding. In Salahuddin and others v. Frontier Sugar Mills & Distillery Ltd. and others (PLD 1975 SC 244), the Supreme Court of Pakistan held that in a petition for issuance of a writ of quo warranto the High Court can only grant a declaration as to the person's authority to hold the questioned post but cannot issue a mandamus to restore or reinstate the applicant to office. In Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97), the Supreme Court stated that quo warranto proceedings are inquisitorial rather than adversarial, not only because a relator does not have to be a person aggrieved but also because a person who holds public office without a legal warrant is burdening the public exchequer and causing harm to others who may be entitled to the said office. The High Court can conduct such inquiry as it deems necessary in the facts and circumstances of a particular case, including an examination of the entire relevant record. This exercise can be done suo motu even if the parties concerned do not draw its attention to it. In Capt. (Retd) Muhammad Naseem Hijazi v. Province of Punjab and others (2000 SCMR 1720), the Supreme Court held that on any such plea, the court must not only determine whether the respondent is holding the office under the order of competent authority, but also whether he is legally qualified for it or to continue to hold it, and whether any statutory provision has been violated in making the appointment. In Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114), the Supreme Court ruled that the writ of quo warranto is discretionary, and the High Court is competent to inquire into the motives and conduct of the person challenging public office appointments. The relevant excerpt is reproduced below: "There can be no cavil with the principle that to grant the relief in the nature of quo warranto is within the discretionary power of the superior Courts, it should not be allowed as a matter of course, rather the conduct and the bona fides of the relator, the cause and the object of filing such petition is of considerable importance and should be examined; it should be ascertained if the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else. We are of the considered view that quo warranto remedy should not be allowed to be a tool in the hands of the relators, who approach the court with mala fide intentions and either have their own personal grudges and scores to settle with the holder of the public office or are a proxy for someone else who has a similar object or motive."[12] 20. The Petitioner is a practising advocate and citizen of Pakistan. In Malik Asad Ali and others v. Federation of Pakistan and others (PLD 1998 SC 161), the Supreme Court held that such a person has the essential locus standi to file the petition. The Respondents have alleged
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that this petition is mala fide, but have not brought any material on record to substantiate that allegation. The expression "mala fide" has a definite significance in legal phraseology. The same cannot possibly emanate out of fanciful imagination or even apprehensions. There must exist indisputable evidence of an oblique motive. It is a settled law that mala fides must be pleaded with particularity.[13] Vague and general allegations are not acceptable.[14] The court cannot conduct a roving inquiry to "fish out" a case.[15] 21. In light of the above discussion, I hold this petition maintainable. 22. Let's now turn to the merits of the case. Section 4 of the PCS Act ordains that appointments to the civil service of the province or a civil post in connection with the affairs of the province shall be made in the prescribed manner by the Governor or by a person authorized by him on that behalf. Part-II of the PCS Rules defines the procedure for appointments to posts in the civil service of Punjab by promotion. Part-III and Part-IV deal with initial and ad-hoc appointments, respectively, and Part-V with relaxations. Rule 9 ordains that promotions or transfers to posts in various grades shall be made on the recommendation of the appropriate Committee or Board. Rule 10 states that the Selection Authority shall consider only officers with the prescribed qualifications and meet the conditions stipulated for this purpose. The crux of these provisions is that only the right officer can be posted to a particular position. A BS-19 officer shall be posted only against a BS-19 position and not to a higher one. 23. Rules 10-A, 10-B, and 13 provide for appointments on acting charge, current charge, and officiating basis to deal with various contingencies when a post becomes vacant. These Rules are reproduced in Appendix-I for ready reference. It is important to note that the seniority principle is followed in every case, subject to the conditions/criteria outlined in these provisions. The PCS Rules, including Rules 10-A, 10-B and 13, do not allow for appointments on an OPS basis. 24. The Government maintains that OPS is a stop-gap arrangement and draws on S&GAD's notifications dated 17.05.1982, 17.08.1988 and 01.05.2000 (Appendix-II) and the Finance Department's Memorandum dated 24.2.2009 and Policy Letter dated 16.12.2009 (Appendix-III) to claim a legal mandate for it. I am afraid, they are of little help to it because S&GAD's notifications talk of "Officiating arrangements against posts pending regular appointment" and specifically declare that "appointment to higher post in own pay and grade has no meaning in law" and that "such arrangements are not envisaged in law." 25. S&GAD's notification dated 17.05.1982 states that appointments to higher posts, even as a stop-gap measure, should be made with the Appointing Authority's approval. If appointment to higher posts is not possible for any reason, the senior-most eligible officer should be assigned additional charge of the higher post. S&GAD's notification dated 01.05.2000 directs that the practice of making appointments on an OPS basis should be discontinued. A position should be filled up according to the prescribed procedure as soon as it becomes available. If that is not possible for any reason, stop-gap appointments should be made only per Rules 10-A, 10-B and 13 of the PCS Rules. These instructions have statutory force in terms of the law laid down by the Supreme Court in Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291). The relevant excerpt is reproduced below: "This…
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