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Petitioner: NAZIR AHMAD SHAIKH VS Respondent: GOVERNMENT OF SINDH
1998 P L C (C
1998 P L C (C. S.) 607
[Karachi High Court]
Before Wajihuddin Ahmed and Saiyed Saeed Ashhad, JJ
NAZIR AHMAD SHAIKH
Versus
GOVERNMENT OF SINDH through Secretary, Services and General Administration Department (S&GAD) Sindh, Karachi and another
Constitutional Petitions, Nos. D-123, D-124_, D-143, D-154, D-164, D-226, D-232, D-244, D-251, D-279, D-282 and D-283 of 1997, decided on 1st July, 1997.
(a) Sindh Civil Servants Act (XIV of 1973)--
----S. 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Out of turn promotion to scores of civil servants were granted by ex-Chief Minister of the Province---Show-cause notices were issued to such civil servants subsequently to appear and to explain as to why they should not be reverted---Civil servants, after receipt of such notices, challenged the same in High Court to its Constitutional jurisdiction---Maintainability---No adverse action having yet been taken against any of civil servants (petitioners) mere show-cause notices issued to them and due hearing having been provided to them, such action was in consonance with rule laid down by Supreme Court in Anisa Rehman's case (1994 SCMR 2232)---No cause of action had, thus, arisen to civil servants to invoke Constitutional jurisdiction of High Court.
Anisa Rehman's case 1994 SCMR 2232 rel.
(b) Sindh Civil Servants Act (XIV of 1973)---
----S. 24---Object, scope and import of S. 24, Sindh Civil Servants Act, 1973.
A close scrutiny of section 24 of Sindh Civil Servants Act, 1973 would reveal that the exercise of powers thereunder may be approached from two different angles. Thus, in the first place, a civil servant might be exposed to suffer detriment for meting out of a just or equitable treatment to another or others. However, while the power of the Government to do so was not restricted by Civil Servants Act or the rules the proviso, appended to section 24, guaranteed that the affectee could not be dealt with in a manner less favourable to him than that postulated in the Act or the Rules. The other facet of the section dealt with situations, converse to the above and explained, what might be termed, hardship cases. Here, as well, the provisions of the Act and the Rules could be bypassed if and when justice and equities in the case so demanded. Correspondingly, where, in such a given case, the civil servant concerned was to be relieved of the rigours' of law that could not, arbitrarily, be at the expense of another civil servant. The proviso appended to the section would make that amply clear. Such a civil servant, who might become exposed to the impact of a "just and equitable" treatment to another, under the operative part of section 24 of the Sindh Civil Servants Act, could never be "dealt with in any manner less favourable to him than that provided by" the Act or the Rules.
(c) Sindh Civil Servants Act (XIV of 1973)---
----S. 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Competency to file---Out of turn promotion---Show-cause notice issued to civil servants to explain why they should not be reverted---Right of hearing was also being provided to civil servants---Petitioners being civil servants, if and when reversion had taken place, their remedy would be before Service Tribunal and for that there had to be final order---Where, Tribunal of exclusive jurisdiction was mandated by and created under the Constitution itself, there could be no `piecemeal administration of remedy to aggrieved person---Constitutional petition was not competent---No final order having yet been passed by Departmental Authority, civil servants, were not even aggrieved persons so as to invoke jurisdiction of High Court-- Grievance of civil servants as and when actionable could be raised at appropriate time in proper set of proceedings.
Asif Ali Khoja v. Government of Sindh 1997 PLC (C.S.) 776; Saghir A. Naqvi v. Province of Sindh 1996 SCMR 1165; Abdul Rehman V. I.-G. of Police, Punjab, Lahore PLD 1995 SC 546 = 1995 PLC (C.S.) 1191; Muhammad Salim Chaudhry v. Secretary to Government of Punjab 1997 PLC (C.S.) 409; Imran v. Presiding Officer, Punjab Special Court PLD 1996 Lah. 542; Chittarangan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197. and Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 ref.
(d) Sindh Service Tribunals Act (XV of 1973)---
----S. 4---Constitution of Pakistan (1973), Arts. 212 & 199---Service Tribunal was found to be non-functional due to non-appointment of Chairman of the Tribunal---High Court directed that Government would take steps to fill vacancy of Chairman within period of one month from specified date.
Amir Hani, Rasool Bux Unar, Khalid Hameed, Khalid Javed Khan, Nuruddin Sarki, Manzoor Ali Khan and Shabbir Ahmed Awan for Petitioners.
Raja Qureshi, A.-G. Sindh and Muhammad Sarwar Khan, Addl A.-G., Sindh for Respondents
Date of hearing: 21st May, 1997.
JUDGMENT
WAJIHUDDIN AHMED, J.---The above petitions involve more-or less identical questions of fact and law and are, therefore, being disposed of through this common order. These are two sets of Constitutional Petitions. The first set consists of Petitions Nos. D-123, D-124, D-143, D-154, D-164, D-226, D-232 and D-244, all of 1997. In the second set are Constitutional Petitions Nos. 251, 279, 282 and 283 of 1997. In the first set the petitioners are police officers whereas the second group of petitions have been preferred by medical officers in the service of the Province of Sindh. In Petition No. 123 of 1997 the petitioner had been promoted as Superintendent of Police (B-18) from the post of Deputy Superintendent (B-17)., In Petitions Nos. 124, 143 and 164 of 1997 the promotions were identical, whereas in Petitions Nos. 154, 226, 232 and 244 of 1997 the promotions of the petitioners had been from the positions of Police Inspectors (B-16) to Deputy Superintendents of Police (B-17). In the second bunch of petitions, the petitioner figuring in D-251 of 1997 had been promoted from the post of Medical Officer (B-17) to that of Senior Medical Officer (B-18), in D-279 of 1997 from Woman Medical Officer (B-17) to Senior Woman Medical Officer and in D-283 of 1997 as Senior Medical Officer from B-19 to B-20. All such promotions, apparently, stood made by the then Chief Minister, Sindh, in exercise of powers under section 24 pf the Sindh Civil Servants Act, 1973. Because in the process the petitioners had in controvertibly superseded a large number of their compatriots, in some cases claimed to be running into thousands, these matters, upon dissolution of the Sindh Assembly, came under scrutiny of the Caretaker Chief Minister. For the relevant cases, around November, 1996, summaries were floated by the Secretary (Services), where more or less similar proposals, in the following terms, were made:--
"6. In view of above position and to avoid any legal complications, it is suggested that all cases where promotions were made under section 24 of the Sindh Civil Servants Act or on out of turn basis as reflected at para. 4 above may be reviewed by giving show-cause notices/personal hearing to the incumbents so as to meet the ends of justice. The administrative Department will accordingly be advised to proceed against such officers for their reduction to the lower posts. "
The summaries being approved, show-cause notices were issued. The notices were similarly worded, except for details. The petitioners were to appear at times and on dates specified in the notices and were to explain as to why the petitioners be not reverted. On receipt of notices, the subject petitions were filed and heard in course of time. For reasons to be recorded separately, these petitions were dismissed on 21-5-1997. Our reasons appear as below:
In the first place, no adverse action has yet been taken against any of the petitioners., Mere show-cause notices were issued and due hearings were projected. This was clearly in consonance with the rule laid down by the Supreme Court of Pakistan in Anisa Rehman's case 1994 SCMR 2232. No cause of action, therefore, arose to the petitioners.
As to merits,; the promotions had taken place under section 24 of the Sindh Civil Servants Act, 1973. It would be pertinent to examine such section, which we reproduce hereinbelow:--
"24. Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable:
Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule. "
A close scrutiny of section 24 would reveal that the exercise of powers thereunder may be approached from two different angles. Thus, in the first place, a civil servant may be exposed to suffer detriment for meting out a just or equitable treatment to another or others. However, while the power of the Government to do so is not restricted by the Act or the rules the proviso, appended to section 24, guarantees that the affectee cannot be dealt with in a manner less favourable to him than that postulated in the Act or the Rules. The other facet of the section deals with situations, converse to the above and addresses, what may be termed, hardship cases. Here, as well, the provisions of the Act and the Rules can be by-passed if and when justice and equities in the case so demanded. Correspondingly, where in such a given case, the civil servant concerned is to be relieved of the rigours of law that cannot, arbitrarily, be at the expense of another civil servant. The proviso appended to the section makes that amply clear. Such a civil servant, who may become exposed to the impact of a "just and equitable" treatment to another, under the operative part of section 24 of the Sindh Civil Servants Act, can never be "dealt with in any manner less favourable to him than that provided by" the Act or the Rules.
Because the exercise of power under section 24 is Ex Debito Justitiae, in the event doubts, at some stage, surface regarding the bona fides or the justification for exercise of such power, surely, no one can, legitimately, dispute the requisite scrutiny or lawful determination. No more than that seems to have occurred so far. No prejudice has been-caused and no untoward action has yet been taken. If the petitioners were lawfully and duly promoted, the petitioners shall have nothing to fear and should face the proceeding with patience and equanimity. However, for reasons best known to the petitioners they seem to be negating that very expectation.
Even otherwise, the petitioners being civil servants, if and when a reversion comes about, their remedy lies before the Service Tribunal put for that there has to be a final order. The petitioners, apparently, are disinclined to suffer such an order. It is now settled law that where a Tribunal of exclusive jurisdiction is mandated by and created under the Constitution itself, there can be no piecemeal administration of the remedy to an aggrieved person. See: Asif Ali Khoja v. Government of Sindh (C.P.No.D-38 of 1997, disposed of on 18-3-1997) (1997 PLC (C.S.) 776) The affectee must await for appropriate orders, which would give rise to the invocation of the jurisdiction of such an exclusive Tribunal. Intermediate resorts to other fora is clearly barred. That is, precisely, the predicament of the petitioners here but then the petitioners, in the Constitutional background, must have their remedy under the special law or none at all See: Saghir A. Naqvi v. Province of Sindh 1996 SCMR 1165.
Some argument was addressed by the learned counsel on the question that the Service Tribunal is not currently functional inasmuch as it is not presided over by a Chairman and the remaining two members are incapable of administering relief. This is an important aspect of the matter and needs to be fully examined.
In so far as the Sindh Tribunals Act, 1973, is concerned, per section 8 thereof, the rule making power of the Government, inter alia, extends to fixing the "requirements as to the number of members of the Tribunal necessary for hearings before or, order or decision by, a Tribunal" as also the "filling of a vacancy in the office of the Chairman or a member of the Tribunal". There can be no cavil with the proposition that in so far as the Sindh Service Tribunal is concerned, it has been established pursuant to the promulgation of the 1973 statute and is a reality. The only question is whether, without a subsisting Chairman, the Tribunal is functional. Because the Tribunal is in existence there can be no difficulty in instituting appropriate appeals before it. The only aspect emphasised by the learned counsel, in these petitions, is that their appeals, if and when brought, in the absence of the Chairman, cannot be accorded due hearing. The rules applicable to hearings under the Sindh Service Tribunals (Procedure) Rules, 1974, are rules 23 to 27 which, for ready reference, are reproduced hereinbelow: --
"23. Subject to the general or special orders of the Chairman--
(a) an appeal against an order, imposing any minor penalty under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, or relating to provided fund, leave, transfer or posting shall be heard by a single member;
(b) an appeal against an order relating to benevolent fund, insurance, re-employment or probation shall be heard by a Division Bench consisting of two members; and
(c) an appeal against an order, imposing any major penalty under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, or relating to confirmation, promotion, retirement, pension and gratuity, pay including additional pay, technical pay and special pay and honoraria shall be heard by the Full Bench consisting of three members.
24 If any member, is, for any reason, unable to attend a -sitting of the Full Bench, the other two members may, notwithstanding his absence, proceed with and any appeal or other matter if ripe for decision, dispose of finally at such sitting or any subsequent sitting.
25 If in any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail, and the decision of the Tribunal shall be expressed in terms of the view of the majority.
26 If a matter is heard by two members only and there is difference of opinion between them, the matter shall be reheard by the Chairman and the members and the opinion of the majority shall then prevail.
27 Whenever a casual vacancy in the office of Chairman occurs the senior member shall act as Chairman till the vacancy is filed by Government."
In consonance with the Rules occurring above, it is manifest that appeals, relating to promotions etc., brought about or recalled under section 24 of the Sindh Civil Servants Act "shall be heard by the Full Bench consisting of three members". (No different "general or special" order is invoked).. If, however, any member, which expression, as per the definition clause in the Rules, includes the Chairman, is, for any reason, unable to attend a sitting of the Full Bench the other two members may, notwithstanding his absence, proceed with any appeal or other matter, if ripe, for decision and dispose it of finally. Where a matter is heard by two members only and there is a difference of opinion between them such has to be re-heard by the Chairman and the members and the opinion of the majority shall, then, prevail. In circumstances, however, where the Full Bench of the Tribunal is not available at all, either on account of a vacancy in the office of Chairman or of a member or members, the situation cannot admit of the concept of a member, for any reason, being unable to attend a sitting of the Full Bench. When the Chairman or a member has not been appointed at all, upon occurrence of a vacancy, the contingency of inability to attend can, therefore, never be attracted. In such a state of things, Rules 24 and 25 of the Rules would be of no help and the Tribunal, in cases where a Full Bench must meet and decide an appeal would, to that extent, be non-functional. The further question is whether such a situation can be taken care of the rule 27 of the Rules, which envisages that whenever a "casual vacancy" in the office of Chairman occurs, the senior member shall act as Chairman till the vacancy is filled by the Government. The adjective casual carries the meanings of accidental, unforeseen or occasional. It can be and has been argued that a vacancy occurring upon the expiry of the term of a Chairman or even upon the cessation of a Chairman to remain so on account of resignation or other cases still remains a casual vacancy. However, the word "casual" also connotes the implications of a short duration of time. It has been contended before us by the learned counsel for the petitioners that the vacancy caused, upon the efflux of the term of office of Mr. Justice (R) Munawar Ali Khan and that upon the cessation of Mr. Justice (R) Abdul Majeed Khanzada have already lasted for 18 and 4 months respectively. It, therefore, follows that such a vacancy cannot be termed as casual. Rule 27 (ibid), therefore, which is an enabling rule, can hardly be of any use or assistance in such a continuing state of inaction.
Even otherwise and even when the vacancy is a casual one, the instant matters can only be dealt with by a Full Bench of the Tribunal. It follows that a vacancy in the office of the Chairman or of a member, even if casual, would leave the Tribunal bereft of the requisite Full Bench and such matters accordingly, cannot be heard. For the purposes here, therefore, it must be found that the Tribunal is, currently, non-functional. The decisions of the Supreme Court of Pakistan in Abdul. Rehman v. I.-G. of Police, Punjab, Lahore PLD 1995 SC 546 = 1995PLC (C.S) 1191; Muhammad Salim Chaudhry v. Secretary to Government of Punjab 1997 PLC (C.S) 409, even though acknowledging that smaller benches of a Service Tribunal can be constituted, do not derogate from the foregoing proposition.
The Tribunal having thus been found to be non-functional reference was made to the United Bank Ltd. v. Akbar Agencies Ltd. PLD 1987 Kar. 81, to contend that this Court in such a state of things can assume jurisdiction in matters, which need to be decided under rule 23(c) of the Sindh Service Tribunals (Procedure) Rules, 1974. This argument cannot be upheld for more reasons than one. In the first place, there is no final order yet, affecting the terms and conditions of service of the petitioners, which needs to be attended to immediately. No occasion, therefore, arises for assumption of jurisdiction at this stage of the controversy. In the second place, whenever a vacancy in a Court or Tribunal occurs and a vacuum is thereupon created, which continues for an unreasonable period of time, this Court, under Article 199 of the Constitution has the power and jurisdiction to require the appointing authority to fill up such a vacancy and to bring about discontinuation of such a vacuum. What is a reasonable time in a given case is, however, always a question of fact to be determined in the attending circumstances. Because the vacancy, in the office of the Chairman of the Sindh Service Tribunal, the last of which is stated to have occurred in February, 1997, is far too long for any public good, a situation has arisen for requiring the Provincial Government of Sindh to fill such a vacancy within a specified time. On our query, the learned Additional Advocate-General, Sindh, pointed out that the delay, at this juncture, was occurring because pursuant to the Lahore Full Bench decision in Imran v. Presiding Officer, Punjab, Special Court PLD 1996 Lah. 542, the Government was awaiting the approval of the nominee from the Hon'ble Chief Justice of this Court. Even if that be so, such matters have to be resolved expeditiously. As far as possible, therefore, the Government would take steps to fill the vacancy of the Chairman within a period of one month from the date reasons for the orders in these petitions are recorded.
Here may be taken note of an argument from the side of the learned counsel for the petitioners that the Tribunal itself does not satisfy the requirements as, inter alia, laid down in the referred case of Imran and, therefore, in consonance with the dicta in Chittarangan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66, the same may be declared to have been unlawfully constituted. To elaborate, contention is that a Court, Tribunal or other authority can be found to have been illegally constituted and declared to be so eve aliundi. We do not think that such a question arises even remotely in these petitions because as seen, as yet, there is not even a final order against which the petitioners could be aggrieved and to question the constitution of a Tribunal, which the petitioners cannot even approach at this stage and, at that, in proceedings aliundi would be totally unnecessary and, possibly, even counter-productive. Such a question, if any, obviously can be raised at an E appropriate time and in a proper set of proceedings.
The foregoing are the reasons for the short orders through which these petitions were dismissed as above.
A.A./N-62/K Petitions dismissed.