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Official Citation: 2024 SCMR 1701
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-04-30
Parties: Abdul Jabbar Abbasi and others vs Government of Sindh & Others
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-04-30, officially reported as 2024 SCMR 1701. In this matter between Abdul Jabbar Abbasi and others and Government of Sindh & 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 2024 SCMR 1701
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito, Amjad Ali Bohio Title: Abdul Jabbar Abbasi and others vs Government of Sindh & Others Case No.: C.P No.D-396 of 2025, C.P No.D-494 of 2025 Date of Judgment:2025-04-30 Reported As: 2025 SHC 696 Result: Petition Dismissed
JUDGMENT
JUDGMENT AMJAD ALI SAHITO, J.- Through captioned petitions, the petitioner(s) has prayed for the following reliefs: i. A declaration that the process of appointment, as advertised and concluded is illegal and unlawful; ii. A declaration that Respondents Nos.1 to 3, are bound by the service structure approved by the controlling authority. iii. A declaration that the recruitment process is a material deviation thereof; iv. A declaration that the Summary dated 20.02.2025 and its endorsement dated 01.03.2025 are unlawful and without any lawful effect; v. (Pending grant of foregoing) An order restraining notification of Respondents No.4 to 11 as Chairman; vi. (Pending grant of foregoing) An order restraining the Respondents No.4 to 11 from acting in pursuance of the Impugned Summary and / or acting as Chairman. 2. The relevant facts, briefly stated, are that the Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The Universities & Boards Department, Government of Sindh (hereinafter referred to as "Respondent No.2"), with the approval of the Controlling Authority, published advertisements in leading newspapers inviting applications for eight (08) vacant positions, including Chairmen, Secretaries, Controllers of Examination, and Audit Officers. The appointments to the posts of Chairmen of all Boards of Education in Sindh are governed by the provisions of the Sindh Boards of
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Intermediate and Secondary Education Ordinance, 1972, as amended up to the year 2020 (hereinafter referred to as "the Ordinance, 1972"). In response to the public advertisement dated 20.12.2023 issued by Respondent No.2, the Petitioners submitted their applications for the position of Chairman, Board of Intermediate and Secondary Education. Subsequently, the appointment process was initiated, and interviews were conducted by the Search Committee (hereinafter referred to as "Respondent No.3"). Out of approximately 300 applications received by Respondent No.2, 176 candidates were shortlisted. Upon conclusion of the process, Respondents Nos. 4 to 11 were selected for appointment against the eight (08) vacant posts of Chairman in the Universities & Boards Department across Sindh. 3. Upon issuance of notices, the official and private respondents entered / appeared through their respective counsel and filed para-wise comments and replies, which were duly exchanged between the parties. The Petitioners opted to file an Affidavit in Rejoinder to rebut the assertions made therein. The submissions on behalf of the Petitioner(s). 4. Mr. Muhammad Ali Lakhani, Advocate appearing on behalf of the petitioner(s) contends that a summary was floated before the Chief Minister Sindh wherein it has been disclosed that "initially a note was submitted to the Caretaker Chief Minister Sindh being Minister/Incharge/Controller Authority of the Education Boards proposing two options i.e. (i) To fill the vacant positions after framing recruitment rules as advised by the Law Department since no recruitment rules exist in the education Boards, or (ii) To proceed under Section 14 of the Sindh Boards of Intermediate and secondary Education Ordinance, 1972 which provides that 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; however, in view of said summary the subject advertisement was illegal as existing service structure was not available in the field. He next submits that the terms and conditions were notified vide notification dated 05.07.2023 and according to Section 14(2) of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 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. He next contends that the Controlling Authority i.e. Chief Minister being the Minister In-charge without any application of mind has endorsed the recommendations of Respondent No.3 without inquiring to the criteria and or rationale employed in re-shuffle of recommendees' and the glaring contradiction in the two summary's submitted by the respondent No.2 on 01.03.2025. 5. He further contends that before filing these petitions, the petitioner(s) previously initiated two proceedings viz. Suit No.93 of 2024 and Suit No.1178 of 2024 wherein at the time of disposal of the Secretary (respondent No.2) had appeared and made a statement before the Court that, in cases where candidates with equal qualifications are available, preference would be given to those with experience working within the department; whereas, he has acted in contravention of his own statement thereby committing contempt of Court. He further contends that the impugned summary lacks any objective criteria justifying the selection of Respondents No.4 to 11 rendering the process arbitrary, discriminatory, and devoid of legal justification. The absence of a clear and legally recognized criterion for selection highlights the malafide intent of the respondents. 6. He further contends that all vacancies are being filled exclusively through the same group, without any adherence to the principles of equal opportunity, transparency, and merit based selection. The monopolization of appointments not only contravenes the law but also infringes upon the fundamental rights of eligible candidates who have been unjustly excluded from consideration. While concluding his arguments, he has relied upon un-reported order dated 13.03.2024 passed by this Court in C.P No.D-1708 of 2023 and C.P No.D-1709 of 2023, and an order
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dated 27.11.2018 passed in C.P No.D-197 of 2011 at Sukkur Bench as well as relied upon the order dated 30.09.2020 passed by this Court in C.P No.D-1970 of 2019 and C.P No.D978 of 2020. He has relied upon the case of Ayaz and others v. Mustafa Saeed and others reported as (2025 SCMR 216), Miss Rabia Khan and 3 others v. Province of Sindh and 3 others reported as (2012 YLR 1801), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 Supreme Court 132). He lastly prayed for allowing both these petitions. The submissions on behalf of the official Resdondents. 7. Conversely, Syed Muhammad Saulat Rizvi Advocate appearing on behalf of respondent No.3 contends that both these petitions are not maintainable in view of the case of Waheed Gul Khan and another v. Province of Sindh and others reported as (2024 SCMR 1701) whereby the Honourable Supreme Court has held that, merely qualifying for the interview (after passing the written test) does not create any vested right for appointment to a specific post in favour of the candidates. He further contends that initially the petitioner(s) were appointed on the subject posts of Chairman as stop-gap-arrangement; however, same cannot be continued on their will and desire for an indefinite period. 8. He next contends that both these petitions are barred by the statutory provisions of Section 14(2) and Section 15(2) of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, which empower the Controlling Authority to appoint officers and make necessary arrangements for discharging the duties of the said positions. He next contends that the petitioner(s) have failed to provide any statutory provisions/Rules under Section 17 & 18 of the Sindh Boards of Intermediate & Secondary Education Ordinance, 1972 or service structure, which was duly approved by the Government in respect of appointment / induction to the positions of different posts and such aspect has also been observed by this Court in Para 15 of the judgment reported as (2016 PLC (CS) 787) and (2016 CLC 1861) and same were upheld by the Honourable Supreme Court. 9. Learned counsel further contends that the appointment of subject post of Chairman is a policy decision which cannot be challenged in a writ jurisdiction as held by the Honourable Supreme Court in a case reported as (2022 PLC (CS) 164) as well as in a case reported as (2024 SCMR 581). Learned counsel further contends that since the petitioner(s) did not qualify the interview conducted by the Search Committee filed these petitions just to prolong the entire process of appointments as they are enjoying the subject post of Chairman on stop-gap-arrangement and did not want to leave said post. He lastly while relying upon the case of Government Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others reported as (2015 SCMR 269) requests for dismissal of both these petitions. 10. Mr. Abdul Jaleel Zubedi, Additional Advocate General, Sindh appearing on behalf of respondents Nos.1 & 2 has referred the order dated 08.04.2009 passed by this Court at Karachi in C.P No.D-1676 of 2008 and a case of Abdul Sami Soomro and others v. Province of Sindh through Chief Secretary and others reported as (2016 PLC (C.S) 787). He contends that interview result cannot be challenged in the writ jurisdiction before this Court; that petitioner(s) have no locus standi to file these petitions as they neither hold permanent positions nor possessed any vested right; that under Section 12 of the Sindh Boards of Intermediate & Secondary Education Ordinance, 1972, the Sindh Government / Controlling Authority retains the exclusive power to appoint officials to these positions, negating any claim of statutory right by the petitioners; that all current acting officials including the petitioner(s) hold stopgap positions while the Controlling Authority is now in the final stages of appointing permanent incumbents. The interviews for Chairman have already been conducted and recommendations have been submitted to the Competent Authority for its approval. He lastly prayed for dismissal of captioned petitions. The submissions on behalf of the private respondents.
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11. M/s. Ishrat Ali Lohar & Jaleel Ahmed Memon, Advocates appearing on behalf of respondents Nos.4 & 5 while adopting the arguments advanced by learned counsel for the respondent No.3 contended that though during the entire process of written test as well as interview the petitioner(s) did not raise any objection regarding its validity however, when they came into knowledge regarding their non-selection over the subject post of Chairman; hence, the petitioner(s) have failed to demonstrate any legitimate grievance or legal standing renders them devoid of locus standi. It is further contended that different vacancies in eight Educational Boards were advertised with the approval of the Chief Minister, Sindh being the Controlling Authority. These vacancies included the vacant positions of Chairman, Secretary, Controller of Examinations, and Audit Officers with certain qualifications/experience and age limits, wherein the general conditions of the advertisement included para (v) state that appointment shall be made from a panel of names recommended by the Search Committee and the said specific para (v) of the advertisement has been aligned from the landmark judgment passed by this Court dated 04.03.2016 reported as (2016 PLC (C.S) 787) and (2016 CLC 1861). 12. We have heard the learned counsel for the respective parties and perused the material available on record. 13. The record reflects that there are eight (08) Educational Boards functioning under the administrative control of Respondent No.2. In compliance with the order dated 21.02.2023 passed by this Court at its Sukkur Bench in Constitutional Petition No.D-1601 of 2022 (Re: Ghulam Hussain v. Province of Sindh & Secretary, Universities and Boards Department, etc.), whereby Respondent No.2 was directed to ensure the appointment of full-fledged Chairmen in all Boards where stop-gap arrangements or additional charges had been made, within a period of two (02) months, necessary steps were initiated. Pursuant thereto, the Controlling Authority/Provincial Cabinet, in its meeting held on 04.12.2024, directed Respondent No.2 the Universities & Boards Department, Government of Sindh to proceed with the appointments against the eight (08) vacant posts of Chairmen for Educational and Technical Boards. Accordingly, in compliance with the said directions, Respondent No.2 issued a public advertisement dated 20.12.2023, inviting applications for the posts of Chairman, Secretary, Controller of Examinations, and Audit Officer. The Petitioners submitted their applications in response to the said advertisement for the position of Chairman. 14. The Search Committee, comprising the Chairperson of the Sindh Higher Education Commission, the Secretaries of the Universities & Boards Department and the College Education Department, a representative of the Sindh Higher Education Commission, the Vice-Chancellor of NED University, and a former Chairman of a Board of Education, conducted interviews in nine batches held between 09.01.2025 and 27.01.2025, with the final batch conducted on 03.02.2025. It was determined that only those candidates securing at least 50% aggregate marks would be considered qualified. The record further reflects that a total of 300 applications were received by Respondent No.2 for the post of Chairman, out of which 176 candidates were shortlisted and interviewed by the Search Committee, from whom Respondents Nos.4 to 11 were ultimately selected. 15. It is pertinent to note that, in an attempt to obstruct the process for the appointment of eight (08) Chairmen of the Educational Boards prolonged litigation was initiated by individuals holding stopgap or additional charge positions as Chairmen and Secretaries of various Boards. The first such case, Suit No. Nil of 2023, was instituted by Mr. Rafiq Ahmed, who had held the stopgap charge as Chairman, Board of Intermediate and Secondary Education (BISE), Sukkur, for a period of two years. He challenged the authority of the Caretaker Government with respect to the Summary and Notification dated 11.12.2023, whereby the Commissioner Sukkur was assigned additional charge of Chairman, BISE Sukkur, until a regular appointment could be made through the Search Committee. 16. After due consideration, the learned Single Judge of this Court dismissed the suit vide order dated 15.01.2024, holding that the action taken by the Chief Minister was lawful and devoid of mala
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fide intent. The Court further directed the Respondents to expedite the appointment process in accordance with applicable Rules and Regulations. Thereafter, other officers, including Anwar Aleem Rajput, Zaheeruddin Bhutto, Dr. Masroor Ahmed Zai, and Abdul Fateh Mehar, challenged the aforementioned order by relying on the precedent set in H.M. Saya's case. However, their appeal (HCA No. 47 of 2024) was dismissed on 10.10.2024. The original plaintiff, Mr. Rafiq Ahmed Palh, also preferred HCA No. 51 of 2024 against the order dated 15.01.2024. On 02.02.2024, this Court passed a temporary order suspending the Notification assigning additional charge to the Commissioner, Sukkur, while referring to Section 15(2) of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, which empowers the Government of Sindh, as the Controlling Authority, to make such appointments. HCA No. 51 of 2024 remains sub judice. 17. Separately, Dr. Masroor Ahmed Zai filed Suit No. 1223 of 2023, challenging the Notification dated 17.07.2023 whereby his posting as Controller of Examinations, BISE Hyderabad, was withdrawn. An interim order was passed, suspending the impugned Notification. Mr. Hafeezullah Abdul Rehman, a candidate for the post of Chairman, BISE, instituted Suit No. 1714 of 2023, asserting that his name had been shortlisted pursuant to an earlier Advertisement dated 05.06.2021 and had been recommended by the then Search Committee vide communication dated 06.04.2022. On 20.10.2023, this Court passed an interim order suspending Notifications dated 19.07.2023, 10.08.2023, and 05.05.2023, among others, and further directed that appointments be made strictly in accordance with the said advertisement, with a report to be submitted thereafter. 18. Similarly, Mr. Muhammad Aneesuddin, who was holding acting charge as Secretary, BISE Mirpurkhas, filed Suit No. 1964 of 2023 challenging the Notification dated 23.11.2023. This Court, vide interim order dated 30.11.2023, suspended the impugned Notification and restored the earlier Notification dated 07.07.2023, thereby allowing him to continue holding the said acting charge. Furthermore, Suit No. 209 of 2024 was filed by a whistle-blower lacking locus standi, challenging the Notification dated 10.08.2023 regarding the appointment of Chairman, BISE Mirpurkhas, on a stopgap basis. Similarly, Mr. Ghulam Mustafa, a professional lawyer with no demonstrable standing, filed Suit No. 786 of 2024, questioning the appointments made on an acting/stopgap basis for the Chairmen of BISE Karachi, Nawabshah, and Mirpurkhas Boards. Prof. Ahmed Ali Brohi, through Suit No. 93 of 2024, challenged the authority of the Caretaker Government, contending that the same was in violation of Section 15 of the aforementioned Ordinance. He sought consequential relief against Notification dated 19.01.2024, whereby the Commissioner, Hyderabad, was assigned additional charge of the subject post. Likewise, Mr. Sikandar Ali Mirjat, holding stopgap charge as Chairman, BISE Larkana, challenged the Notification dated 14.12.2023, assigning the Commissioner, Larkana, to the said position, also alleging violation of the statutory framework under Section 15 of the Ordinance. 19. Mr. Anwar Aleem Rajput, the plaintiff in Suit Nos. 1965 of 2023, 126 of 2024, and appellant in HCA No. 47 of 2024, appears to be a habitual litigant as evidenced by his involvement in numerous proceedings, including Suit Nos. 2455 of 2017, 1041 of 2018, 979 of 2021, 658 of 2022, 2126 of 2023, and HCA Nos. 58 of 2020, 408 of 2023, and 37 of 2025. He sought declaratory relief against the appointment process for the posts of Controller and Secretary of various Boards, without seeking injunctive relief, specifically against Notification dated 05.07.2023. In a separate proceeding, Suit No. 1178 of 2024 was jointly filed by Prof. Ahmed Ali Brohi, Dr. M. Farooq Hasan, Rafiq Ahmed Palh, Samar Raza Talpur, and Sikandar Ali Mirjat all of whom were serving as stopgap Chairmen of BISEs in Hyderabad, Shaheed Benazirabad, Sukkur, Mirpurkhas, and Larkana, respectively, challenging the appointment process initiated through the Search Committee and the written test conducted by I.B.A Karachi, primarily on the ground that the same was undertaken without framing formal rules or establishing a service structure. The process was subsequently stayed.
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20. On various dates, the aforementioned matters were heard conjointly. However, drawing guidance from the observations made in the order dated 15.01.2024 passed in Suit No. NIL of 2023, which was subsequently upheld in HCA No. 47 of 2024, and in consonance with the principles laid down in the aforementioned reported judgments, whereby the Government was directed to commence the process of appointment to the posts of Chairmen, Boards of Intermediate and Secondary Education (BISE), strictly in accordance with the applicable legal framework and within a reasonable timeframe, the learned Single Judge vide order dated 14.11.2024 was pleased to direct the A.A.G appearing in the matter for acquiring instructions from Government as to the availability of Approval of Cabinet's Decision for starting and completing the process through Controlling Authority directly or through his Nominee. On 13.12.2024, in compliance of above said order, the Summary and Approval of the Cabinet was placed before single Bench of this Court which was appreciated during course of hearing and finally, all the above matters were heard together and disposed of. 21. The said order has been assailed through HCA Nos. 37 of 2025, 38 of 2025, and 51 of 2024 by the aggrieved parties. However, the appellants failed to persuade this Court to grant any prohibitory or injunctive relief against the on-going process for appointment of Chairmen to the Educational Boards of Sindh. Thus, the attempt to obstruct the appointment process was unsuccessful and failed to yield the desired outcome. It may also be observed that the case of Engr. Anwar Aleem Rajput is identical in nature to Suit No. 1964 of 2023. As stated hereinabove, in particular with reference to sub-para (c) of Suit No. NIL of 2023, it is pertinent to note that Engr. Anwar Aleem Rajput and others had previously challenged the decision rendered in Suit No. NIL of 2023 through HCA No. 47 of 2024, which stands dismissed. 22. From the foregoing, it is manifest that the functioning and administration of the official respondents have been significantly hampered due to unwarranted and prolonged litigations, detailed mentioned supra. Such actions have not only adversely impacted the educational future of students across the province but have also amounted to an abuse of legal process, wherein various individuals have sought, through successive legal actions, to obstruct the legitimate process of appointment of Chairmen to different Educational Boards. 23. It is rather startling that, despite having submitted applications pursuant to the advertisement for the posts of Chairmen, the present petitioner(s) raised no objections to the recruitment process at any earlier stage. They voluntarily appeared before the Search Committee, where it was explicitly communicated that candidates securing at least 50% aggregate marks would be considered qualified for further proceedings. However, Petitioner No. 1, Mr. Abdul Jabbar, obtained only 32%, and Petitioner No. 2, Mr. Sikander Ali Mirjat, secured 46.8%, thereby falling short of the qualifying threshold and being rendered ineligible. Having failed to qualify, the petitioners have now instituted these proceedings, seeking declaratory relief to the effect that Respondents No. 1 to 3 are bound to adhere to a purported service structure allegedly approved by the Controlling Authority. It is, however, imperative to highlight that Section 17 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, confers authority upon the respective Boards of Governors (BoG) only in respect of framing rules relating to disciplinary matters, leave, and retirement of officers and employees. 24. Contrarily, with regard to the method of recruitment for the key posts enumerated under Section 14 of the said Ordinance, the statute unequivocally vests such authority with the Controlling Authority, i.e., the Government or its duly nominated representative, as per Section 12 of the Ordinance, 1972. Section 14 further classifies four principal designations Chairman, Secretary, Controller of Examinations, and Audit Officer as officers whose appointments fall exclusively within the domain of the Controlling Authority, thus affirming that such powers rest solely with the Government.
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25. Pursuant to Sections 17 and 18 of the Ordinance of 1972, the powers to frame Regulations and Rules have been conferred upon the Board. A plain reading of these statutory provisions indicates that the Regulations promulgated by the Board must remain subordinate to the Ordinance of 1972. Furthermore, the Rules formulated under Section 18 are required to be consistent not only with the parent statute but also with the Regulations sanctioned by the Board, subject to approval by the Government which, as per the authoritative interpretation laid down by the Hon'ble Supreme Court in the Mustafa Impex case, refers to the Cabinet. Although Section 17 of the Ordinance empowers the Board to frame Regulations including, inter alia, those governing conditions of service, disciplinary procedures, leave entitlements, and retirement of its employees. Subsection (2) thereof explicitly mandates that such Regulations shall be submitted to the Government and shall not come into effect until duly approved by the same. In our considered view, the rule-making authority delineated under Section 18 is circumscribed in scope and does not encompass the framing of rules related to direct recruitment or promotion to any post. 26. Moreover, even assuming arguendo that the powers to frame rules pertaining to appointment existed under Section 17, such powers are conditional upon Government approval. No documentary evidence has been placed on record…
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