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Petitioner: SAFDAR ALI SAHITO VS Respondent: PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 10 others
Court Name: Sindh High Court Judge(s): Faisal Arab, Muhammad Ali Mazhar Title:SAFDAR ALI SAHITO vs PROVINCE OF SINDH through Chief Secretary,
Government of Sindh and 10 others Case No.: Constitutional Petition No,1285 of 2010 Date of Judgment:2011-03-01 Reported As: 2011 PLC (C.S.) 956 Result: Order accordingly Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.--- The petitioner has filed this constitutional petition for issuing writ of quo warranto against the respondents Nos.3 to 11 as according to him, they are not eligible for- holding their present positions which is without any lawful authority and contravention of Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. 1. The brief facts of the case are that the petitioner is a Social worker. It is alleged in the petition that the respondent No,3 is working as Executive District Officer (Finance) District Khairpur in a position of Grade-19 without any lawful authority as he is a Grade-18 officer of WAPDA and does not possess the required qualification for the post. The respondent No,4, though a Grade-20 officer but belongs to special cadre of Health Department but the post is reserved for administrative cadre. The respondent No,5 is EDO Community Development, Khairpur, a BPS-19 position but he is occupying the same without lawful authority being in Grade-18 without required experience. The respondents Nos.6 and 7 are Grade 17 and 18 officers but have been posted in Grade-19. So far as the respondent No,8 is concerned, he is a Grade-20, officer but has been given additional charge of EDO, Education Khairpur, which is against the law. The respondents Nos.9 to 11 are also illegally holding Grade 19 positions but actually they are Grade 18 officers. The petitioner has prayed for writ of Quo Warranto with the directions against the respondents Nos. 1. And 2 not to post any officer in Own Pay Scale and Grade in whole province and in case of non- availability of officers of relevant Grade, give acting charge to the most senior officers of the next Grade of the same cadre till promotions are made.
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2. In response, the respondents Nos.4 to 11 filed their written reply in which it was, inter alia, contended that respondent No,3 has already been transferred, therefore, he cannot be dragged into such proceedings. Respondent No,4 is an Executive District Officer (Health) Khairpur and his posting cannot be objected by the petitioner on the ground that there is no concept of specialist or administrative cadre for the position of EDO (Health). So far as respondent No,5 is concerned, it is stated in the reply that, he is an employee of Federal Government, posted on deputation and serving as the Executive District Officer (Community Development), Khairpur. It is further stated that the respondent No,6 was already transferred prior to the filing of instant petition. Respondent No,7 belongs to the District Administration which has already been exempted in the Provincial Cabinet decision on the basis of which the petitioner has filed this petition. So far as respondent No,8 is concerned, he is already an officer of BPS-20 and holding charge of EDO Khairpur with the approval of lawful authority. It is further stated in the same reply that the respondent No,9 has already been transferred from the position as challenged in the instant petition and the respondent No,10 is one of senior most officers of the department and he is at the verge of promotion for the next higher Grade. The respondent No,11 is also one of the senior most officers of education department, who is very efficiently expediting the tasks and targets for the betterment of public. 3. We have heard the learned counsel for the parties and also perused the record. The learned counsel for the petitioner argued that the terms and conditions of services of the respondents Nos.3 to 11 are regulated under the Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. While placing them in the present positions, the respondents Nos.1 and 2 have blatantly ignored the express provisions of law and they have been illegally posted on their present positions without having required eligibility. The learned counsel for the petitioner relied upon a letter dated 22-4-2009 (available at page 25 of the Court file), issued by Government of Sindh, Service, General Administration and Coordination Department to the Additional Chief Secretary, Planning and Development Department, Government of Sindh, the Senior Member, Board of Revenue, Sindh, the Chairman Enquiries and Anti-Corruption Establishment, Government of Sindh, the Chairman, Chief Minister's Inspection, Enquiries and Implementation Team, all the Administrative Secretaries, Government of Sindh and all the District Coordination Officers in Sindh in which it was intimated that the Provincial Cabinet in its meeting held on 29-4-2008 had unanimously decided to cancel the postings on OPS basis. In the concluding paragraph, it was also mentioned that all the concerned are, therefore, directed to adhere to Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis. For the convenience and ready reference, the letter dated 22- 4-2009 is reproduced as under:--- " No, SOI/S&GAD/6/25/2009 ' GOVERNMENT OF SINDH ' SERVICES, GENERAL ADMINISTRATION ' AND COORDINATION DEPARTMENT KARACHI, ' dated 22nd April, 2009 (1) The Additional Chief Secretary (Dev), Planning and Developient Department, Government of Sindh, Karachi. (2) The Senior Member, Board of Revenue, Sindh, Karachi. (3) The Chairman, Enquiries and Anticorruption Establishment, Karachi. (4) The Chairman, Chief Minister's Inspection, Enquiries and Implementation Team, Karachi. (5) The Administrative Secretaries (All) Government of Sindh. (6) The District Coordination Officer (All) In Sindh. ' SUBJECT: POSTING OF OFFICERS ON OPS BASIS
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' I am directed to refer to the subject noted above and to state that Provincial Cabinet in its meeting held on 29-4-2008 had unanimously decided to cancel the postings on OPS basis. Only two departments were exempted from the ban i.e, District Administration and Police. Accordingly, all the Administrative Departments were requested to revert the officers to their original posts. (2) However, it has been noted with serious concern that the directives of the Chief Minister Sindh have fallen on deaf ears, as some departments are still continuing with such practice in utter disregard of Cabinet decision. As such, Competent Authority has desired that these postings should be stopped forthwith. Any deviation from Government orders will be viewed seriously and tantamount to defy the orders of the Authority. (3) All the concerned are, therefore, directed to adhere to Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis, so that consolidated report in this regard may be furnished to the Chief Minister Sindh for his perusal/orders as desired by him. (Sd.) 22-4.2009 (MEMONA SHAH) SECTION OFFICER-I ' A copy is forwarded for information to:--- (1) The Secretary to Chief Minister, Sindh Karachi with reference to Note for Chief Minister Sindh vide diary No,1255 dated 18-4-2009. (2) The Deputy Secretary (Staff) to Chief Secretary Sindh, Karachi". 4. The learned counsel further referred to another letter available at page 27 of the Court file dated 12/05/2008. This letter was written by Deputy Secretary (Services), Government of Sindh, Services General Administration and Coordination Department (Services Wing) to all the Administrative Secretaries, Government of Sindh, Karachi in which it was stated that various officers/officials have been posted against the higher post on OPS/ officiating basis and in compliance of the decision of the Provincial Cabinet, it was required to take appropriate action regarding the officials by reverting them to their original posts. For the convenience and ready reference, the letter dated 12- 5-2008 is also reproduced as under:--- "NO.PAJDS/(S) S &GAD/08 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT (SERVICES WING) Karachi, dated 12th May, 2008 ' The Administrative Secretary (all), Government of Sindh, Karachi. ' Subject: DECISION OF PROVINCIAL CABINET IN CONTEXT OF REVERSION OF OFFICERS/OFFICIALS WORKING AGAINST HIGHER POSTS TO THEIR ORIGINAL POSTS ' I am directed to refer to the subject matter cited above and to highlight that various officers/ officials have been posted against the higher post in your department on OPS/ officiating basis. (2) In compliance of the decision of the Provincial Cabinet, AD is requested to take appropriate action regarding the officials under its respective control by reverting them to their original post and communicate the names of those officials that are controlled by SGA&CD to the services wing for their reversion as per their respective basic pay scale. (3) In the meantime to cater with the situation; additional charge may be given to the officer of same grade till the posting of the appropriate officer to the respective post. (Sd.) (ASIF IKRAM) DEPUTY SECRETARY (SERVICES) ' C.C. To ' P.S. To Chief Secretary Sindh, Karachi. P.S. To Secretary (Services), S&GAD Karachi"
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5. The learned counsel for the petitioner in addition to the above also relied upon Rule 6-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which provides that for the purpose of selection for appointment by promotion or transfer to posts in Basic Scale 18 carrying special pay, and above and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board consisting of not less than three members. One of whom shall be nominated as Chairman. The proviso attached to the above rule stipulates that Selection Board headed by the Chief Minister shall make selection for appointment by promotion or transfer to posts in Basic Scale 20 or above. Rule 6-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, is reproduced as under:--- 6-A. For the purpose of selection for appointment by promotion or transfer to posts in Basic Scale 18 carrying special pay, and above and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board consisting of not less than three members. One of whom shall be nominated as Chairman: ' Provided that the Selection Board headed by the Chief Minister shall make selection for appointment by promotion or transfer to posts in Basic Scale 20 or above. 6. The learned counsel laid much emphasis that no appointment, promotion or transfer can be made in violation of Rule 6-A but the respondents Nos.3 to 11 have been unlawfully posted in different positions, cadres and grades. In the same sequence, the learned counsel further relied upon Rule 9 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which provides that appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic scale in which the post to be filled exists with the exception in sub-rule (2) that except as otherwise provided in any law for the time being in force, transfers of civil servants of various Basic Scales mentioned in column 2 of the table shall be ordered or notified by the authorities respectively mentioned in column 3 and in the manner indicated in column 4 of that table. Rule 9 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 is reproduced as under:--- 9.(1) Appointment by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic scale in which the post to be filled exists. (2) Except as otherwise provided in any law for the time being in force, transfers of civil servants of various Basic Scales mentioned in column 2 of the table below shall be ordered or notified by the authorities respectively mentioned in column 3 and in the manner indicated in column 4 of that table. 7. In. Support of his arguments, the learned counsel for the petitioner relied upon the following case law:--- (1) PLD 2007 Supreme Court 52 (Hafiz Hamdullah v. Saifullah Khan and others). In this case, the honourable Supreme Court held that writ of quo warranto is in the nature of laying an information before a court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. The object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto, the Court would be under an obligation to inquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office. For issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court under Article 199 of the Constitution is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move High Court to challenge the usurpation or
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unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke constitutional jurisdiction under Article 199 of the Constitution. (2) 2008 PLC (C.S.) 659 (Dr. Shagufta Shahjehan v. Government of Punjab). In this matter, the learned single judge of Lahore High Court discussed the requisite qualifications for the appointment of Director General Environmental Protection Department, Punjab and held that respondent No,2 neither possesses the requisite qualification nor the experience and his appointment was made in relaxation of service rules. In this matter, the respondent took up plea of laches but the learned single judge held that respondent No,2 was appointed in the public office in violation of rules and policies. The appointment of ineligible person and his holding public office, without requisite qualification do not attract application of principles of laches to the case in hand. (3) 2005 PLC (C.S.) 997 (Mahmood Akhtar v. Syed Hassan Mujtaba Jaffri). In this case, the honourable Supreme Court of Azad Jammu and Kashmir held that petitioner invoking jurisdiction of High Court must satisfy that the office in question was a public office and held by respondent without legal authority. Writ of quo warranto would be issued if it is established to the satisfaction of the court that holder of office was not legally qualified to hold or to remain in the office or some statutory provisions had been violated in making the appointment and his title to office was without any legal warrant or authority. Writ of quo warranto would not be issued unless a clear violation of law or any other rule, having the force of law, was shown to have been committed in the appointment. (4) 2001 CLC 1579 (Abdul Bashir v. Government of Balochistan). In this matter, the Divisional Bench of Balochistan High Court has decided the case relying upon the judgment of honourable Supreme Court reported in PLD 1963 S.C. 203 in which the honourable Supreme Court quoted the Halsbury's Laws of England and observed that referring again to the monograph on Crown proceedings in Volume 11 of Halsbury's Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who claimed or usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order that the right to the office may be determined. It was necessary for the issue of writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. In the same case, the honourable Supreme Court further observed that it is well settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. (5) 2010 PLC (C.S) 1377 (Lal Khan v. Employees' Old Age Benefit Institution and others). In this matter, the learned Divisional Bench of this court in number Of petitions held that section 10 of the Sindh Civil Servants Act, 1973 related to posting and transfer which provided that a civil servant shall be liable to serve anywhere within or outside the Province in any post in the Federal Government or Provincial Government or Local Authority or Corporation or Bodies set up or established by any such Government. It appears that Sindh Government could exercise such powers with regard to civil servants only but it cannot change the cadre of a civil servant or absorb/induct him in another department by changing his cadre. It is further held in the same judgment that the deputationist have no vested right to remain on their respective posts forever or for a stipulated period and they could be repatriated back to their parent department at any time. It was further held that by inducting outsiders in various departments of Government of Sindh, civil servants who were already serving in their respective departments after qualifying departmental examination and/or going through selection process have been adversely affected and their reasonable expectation vis-a-vis their promotion, seniority etc: had been snatched away in that fashion. 8. The learned counsel for the petitioner concluded his arguments that in view of the letter dated 22-4-2009, the respondents have been unlawfully posted in their present positions and their posting is not only against the Provincial Cabinet decision but also against the Sindh Civil Servants
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(Appointment, Promotion and Transfer) Rules, 1974 therefore a writ of quo warranto may be issued against them and their posting on the basis of additional charge and OPS may be declared to have been made without any lawful authority. 9. The learned counsel for the respondents Nos.4 to 11 in rebuttal argued that the petitioner has filed this petition for issuance of writ of quo warranto against the routine transfer and posting matter. The learned counsel argued that Rules 6-A and 9 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 are not applicable in this case as the respondents were not appointed but posted through the procedure prescribed and followed by the concerned departments without any deviation or departure from the normal procedure. 10. The learned counsel further argued that the petition is hit by the doctrine of laches. The learned counsel further invited our attention to Annexure 'A' to the petition, which is Cabinet decision relating to posting of officers on OPS basis and argued that the said restriction of the Cabinet was confined and had binding effect at that relevant time when ban was imposed upon such posting and the Cabinet decision is not binding on future OPS posting. The postings of current respondents have been made after the cancellation of posting orders, which were implemented through such decision of the Provincial Cabinet, therefore the decision of Provincial Cabinet is not applicable for future OPS in order to fill the position on stop gap arrangements due to dearth of officer of requisite grade and experience and till the officers become available to be permanently posted. 11. In support of his arguments, the learned counsel for the respondents Nos.4 to 11 relied upon the following case law:--- (1) 2003 PLC (C.S.) 1105 (Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation, Islamabad). In this matter, the learned single Judge of the Lahore High Court held that petitioner had failed to show any reason that why he did not challenge formation of Committee and promotion soon after passing orders in that respect. Writ filed by the petitioner was hit by ladies. It was further held that if the petitioner had any grievance, could file representation against the said promotion and in case of dismissal of his representation, he could approach the Service Tribunal. Writ of quo warranto, otherwise could not be issued as petitioner himself was party. (2) 2003 PTD 2241 (Pakistan Industrial Development Corporation (Pvt) Ltd. v. Federation of Pakistan). In this matter, the learned Divisional Bench of this Court while discussing the doctrine of lathes held that inordinate delay in filing Constitutional Petition, which had gone unexplained, and reasons advanced being without any weight and substance, would be a stumbling block to the maintainability of constitutional petition. (3) PLD 1973 Pesh. 143 (Islamic Republic of Pakistan v. The Settlement Commissioner, Peshawar Division, Peshawar). In this case, the learned single Judge of the Peshawar High Court observed that for six long years, the petitioners have acquiesced the impugned order and paid rent of the disputed bungalow first to transferee and then to subsequent transferee and by this conduct they gave a tacit assurance to the latter that they had reconciled themselves with the decision of the Settlement Commissioner and consequently enabled him to obtain PTD. In this view, the petitioners would appear to have disentitled themselves to any discretionary relief even if their contention is accepted and the order of the Settlement Commissioner is held to be without jurisdiction. (4) 1987 CLC 1661 (Mubarak Ali v. The Chairman, Union Council and others). In this case, the learned single Judge of Lahore High Court had dismissed the petition on the ground of laches as the writ petition was filed after a period of one year upholding the order of Chairman Arbitration Council. (5) PLD 2003 Pesh. 203 (Rizwanullah v. Registrar/President, Cooperative Societies, N.-W.F.P. Peshawar). In this case, the learned Divisional Bench of Peshawar High Court took up the matter of laches and held that equity helps the wakeful, not the slumbering. Laches signify laziness in pursuing a legal remedy. There is no cavil to the proposition that the writ petition even against a
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void order, can be dismissed on the ground of laches but this rule cannot be applied in every case as a mandatory rule (6) PLD 1986 Lahore 310 (Sardar Asseff Ahmad Ali v. Mr. Muhammad Khan Junejo). In this case, the learned Divisional Bench of Lahore High Court relying upon earlier judgment of the honourable Supreme Court of Pakistan reported in PLD 1969 SC 42 held that grant of relief in writ jurisdiction is a matter of discretion and it was quite legitimate on the part of the High Court to test bona fide of the relator to see if he has come with clean hand. A writ in the nature of quo warranto in particular is not to issue as a matter of course, on sheer technicalities on a doctrinaire approach. (7) 2003 YLR 435 (Mashhadi Welfare Association v. Government of Punjab). In this case, the learned single Judge of Lahore High Court held that it is settled principle of law that our Constitution is based on trichotomy and this Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of the policy maker. In fact the petitioners challenged the polices of the respondent/Government, therefore writ petitions are not maintainable in view of the law laid down by the honorable Supreme Court in Zameer Ahmad's case (PLD 1975 SC 667). It is pertinent to point out by us that the judgment of honourable Supreme Court in the case of Zameer Ahmed was related to Exports (Control) Act, 1950 read with Import Policy Order 1972 in connection with licence for import of cinematograph films only. 12. Mr. Imtiaz Ali Soomro, the learned Assistant Advocate General Sindh argued that the respondents had been rightly placed and there is no illegality, infirmity or violation of law. He further argued that the petitioner has no right and authority to file this petition and he further stated that the petition is hit by laches, therefore it is liable to be dismissed. When we confronted him with the letter dated 22-4-2009 in which the Section Officer-I of Government of Sindh, Services, General Administration and Coordination Department intimated to various persons for the reversion of the officers to their original post who were performing their duties on OPS basis, the learned A.A.-G. Concedes to the letter but he…
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