Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. JALIL QADIR VS Respondent: PROVINCE OF SINDH through Chief Secretary, Government of SindhHonorable Justice Gulzar AhmadFaiz Ghanghro,Shafi Muhammad Memon
2010 P L C (C
2010 P L C (C.S.) 731
[Karachi High Court]
Before Gulzar Ahmed and Irfan Saadat Khan, JJ
Dr. JALIL QADIR
Versus
PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 2 others
Constitutional Petition No. D-575 of 2009, decided on 27th April, 2010.
(a) Sindh -Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---
----Rr.6-A & 8---Sindh Civil Servants Act (XIV of 1973), S.10---Constitution of Pakistan (1973), Arts.199(1)(b) (ii) & 212(3)---Sindh Service Tribunals Act (XV of 1973), S.4---Quo warranto, writ of---Post of Director Laboratories/Chemical Examiner in Health Department (BS-20)---Appointment of respondent on such post on acting charge basis---Plea of petitioner that respondent for not possessing requisite qualification was not eligible to be posted on such post---Validity---Issue of qualification of respondent raised by petitioner being a after relating to terms and conditions of service was exclusively within jurisdictional domain of Service Tribunal---High Court declined to consider such plea of petitioner in circumstances---Constitutional petition was dismissed.
Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 rel.
(b) Civil service---
----ESTACODE, applicability of---Scope---ESTACODE containing laws and rules etc., issued by Federal Government not directly applicable to employees of Provincial Government, but some principles thereof in certain cases could be borrowed as guide for resolving matters of such employees---Principles.
ESTACODE incorporates the laws, rules, regulations, notifications, orders issued by Federal Government and its Ministries/ Departments and they mostly relate to the employees of Federal Government. In a way, what is contained in the ESTACODE has no direct application to the employees of the Provincial Government, but some principles dealing with the terms and conditions of service of the employees of Provincial Government, which are not specifically dealt with by the laws, rules, regulations, notifications, orders made by the Provincial Government and its ministries/departments could be borrowed as guide for resolving the matter. Beyond this, the ESTACODE will not apply to the terms and conditions of service of the employees of Provincial Government.
(c) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974)--
----R. 6-A---Sindh Civil Servants Act (XIV of 1973), S.10---Appointment on current or acting charge basis---Validity---No specific period provided in rules for holding of a post on acting charge basis---Such appointments should not continue indefinitely and efforts should be made to fill posts through regular appointments in shortest possible time.
Pakistan Railway v. Zafar Ahmed 1997 SCMR 1730 fol.
(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---
----Rr. 3, 6-A, 7, 8, 8-A, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Post of Director Laboratories/Chemical Examiner (BS-20) in Health Department---Respondent holding post on regular basis in (BS-19) appointed by Chief Secretary on such post in (BS-20) in his own pay and scale until further order---Validity---Chief Secretary could transfer respondent in his own basic scale i.e. of (BS-19) and not in higher post and scale---Respondent was awaiting posting, and his posting by Chief Secretary was temporary---Case of respondent seemed to be that of appointment on acting charge basis as he had been posted to a higher post from one which he was holding---Appointment of respondent to such higher post could be made by appointing authority and that too on recommendation of Departmental Promotion Committee or Provincial Selection Board---Appointing authority for appointing respondent on acting charge basis in (BS-20) was Chief. Minister and not Chief Secretary---Such Committee or Board had not recommended appointment of respondent on acting charge basis in (BS-20)---High Court quashed impugned order of Chief Secretary in circumstances.
Aijaz Mustafa Samtio, Advocate v. Government of Sindh and others 2002 PLC (C:S.) 117; Abdul Ghafoor, Supervisor/ Inspector, N.H.A. v. National Highway Authority and 12 others 2002 SCMR 574; Z.A. Javed Raja, Administrative Officer, Federal Directorate of Education, Islamabad v. Secretary Establishment Division, Islamabad and 3 others 1996 SCMR 329, Dr. Munir A. Abroo v. Federation of Pakistan and others 2000 PLC (C.S.) 231; Pakistan Railway v. Zafar Ahmed 1997 SCMR 1730; Order dated 30-3-2006 passed by honourable Supreme Court of Pakistan in Constitutional Petition No.679-K of 2005; Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others PLD 1990 SC 1013; Ayyaz Anjim v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ghulam Abbas Mujahid v. Executive District Officer Agriculture, Multan and 3 others PLC 2008 (C.S.) 585; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Pakistan Tobacco v. Tahir Raza 2007 SCMR 97 ref.
(e) Constitution of Pakistan (1973)---
----Art. 19 (1)(b)(ii)---Quo warranto, writ of---Nature and object stated.
Writ of quo warranto is in the nature of laying information before a Court against a person, who claims to hold public office, franchise or liberty requesting for holding an inquiry to enable him to show authority under which he supports his claim or right to public 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 as to whether he is holding such office in accordance with law or is unauthorizedly occupying the public office. The Court would be under an obligation to enquire whether the incumbent is holding public office under the orders of competent authority and also to examine whether he would be legally qualified to hold the office and to remain in the same.
Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 rel.
(f) Constitution of Pakistan (1973)---
----Art. 199 (1)(b)(ii)---Quo warranto, writ of---Laches---Holding of public office by respondent, if illegal, would be a continuing cause of action, against which no laches would operate.
(g) Constitution of Pakistan (1973)---
----Art. 199(1)(b)(ii)---Quo warranto, writ of---Illegal appointment of respondent-civil servant challenged by his colleague civil servant (petitioner)---Plea of respondent that petitioner himself being a civil servant could not maintain petition of quo warranto---Validity---Such plea might have some weight, if petitioner claimed relief for himself or raised his own grievance or had grudge against respondent---Petitioner in the present case had simply laid information before court regarding illegal appointment of respondent---High Court repelled plea of respondent in circumstances.
Faiz Ghanghro for Petitioners.
Shafi Muhammad Memon, A.A.-G. Sindh for Respondents Nos.1 and 2.
Irfan Mir Halepota for Respondent No.3.
Date of hearing: 10th March, 2010.
JUDGMENT
GULZAR AHMAD, J.---The petitioner has filed this petition with the following prayer:---
A. Hold that the impugned orders/notifications dated 5th May 2006for posting of a non-eligible, non-qualified and junior incumbent to the post of Director Laboratories/Chemical Examiner Karachi to be illegal, vide ab initio, holding the same is issued without any legal, authority, and of no legal consequences and without jurisdiction.
B. Suspend the operations of the impugned orders dated 5-5-2006.
C Respondent No.1 be required to pass orders and initiate proceedings for filling up the vacant post of Director Laboratories/Chemical Examiner as per method of recruitment/appointment as notified in pursuance of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
D. Any other or additional relief(s) which may be deem fit and proper in the circumstance of the case.
Brief facts of the matter are that petitioner is posted as Assistant Chemical Examiner under the Ministry of Health, Government of Sindh. He was promoted to BS-19 and subsequently obtained move-over to BS-20. Though Notification dated 7-2-1998, post of Chemical Examiner/ Senior Pathologist BS-19 was upgraded to BS-20 with redesignation of the post as Director Laboratories and Chief Chemical Examiner/Chief pathologist. Through notification dated 5-5-2006, the respondent No. 3, Senior Medical Officer BS-19, was posted until further orders as Director Laboratories in BS-20 at Karachi. It is alleged that this notification is in contravention of the provisions of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, (the Rules) inasmuch as the respondent No.3 was not eligible to be posted as Director Laboratories (BS-20) as he did not meet the required qualification, experience and condition for the said post. Petitioner has alleged that he possessed requisite qualification and fulfilled the conditions for the post of Director Laboratories and Chemical Examiner (BS-20) and in this respect he has sent application to the competent authority for his regular posting and that the post is occupied by a non-qualified, non-experienced and junior incumbent, the respondent No.3, on account of which petitioner is facing great hardship as his legal rights are superseded and terms and conditions of service are adversely affected.
The respondents Nos. 2 and 3 have separately filed their comments, in which the claim of the petitioner has been disputed. The respondents have further raised objections regarding maintainability of the petition on the grounds that it is barred under Article 212 of the Constitution secondly it suffers from grave laches.
At the outset, the counsel for petitioner has contended that petitioner seeks no relief for himself rather the petitioner only presses prayer No.1 in the petition, which is in the nature of quo warranto. Learned for the petitioner has contended that respondent No.3 is a simple M.B.,B.S. and does not possess a single day experience in the speciality of Pathology and is not qualified to hold the post of Director Laboratories and Chemical Examiner (BS-20). He has further contended that appointment on acting charge basis of respondent No.3 for such a long period is contrary to law as the post is required to be filled in by a qualified person. He further contended that the very notification dated 5-5-2006 by which the respondent No.3 was posted as Director Laboratories/Chemical Examiner (BS-20) is illegal inasmuch as it is not a case of posting but of an appointment on acting charge basis and the Chief Secretary, who has issued this notification, was not competent authority to make such appointment. He further contended that for appointment on acting charge, obtaining of recommendations of Provincial Selection Board is mandatory, which has not been done in the present case. In support of his submissions he has relied upon the cases of Aijaz Mustafa Samtio, Advocate v. Government of Sindh & others 2002 PLC (C.S.) 117, Abdul Ghafoor, Supervisor/ Inspector, N.H.A. v. National Highway Authority and 12 others 2002 SCMR 574, Z.A. Javed Raja, Administrative Officer, Federal Directorate of Education, Islamabad v. Secretary Establishment Division, Islamabad and 3 others 1996 SCMR 329, Dr. Munir A. Abroo v. Federation of Pakistan and others 2000 PLC (C.S.) 231, Pakistan Railway v. Zafar Ahmed 1997 SCMR 1730 and an order dated 30-3-2006 passed by honourable Supreme Court of Pakistan in Constitutional Petition No.679-K of 2005.
On the other hand, counsel for respondent No.3 has contended that petition is barred under Article 212 of the Constitution as the matter relates to terms and conditions of service. He further contended that petitioner has not approached the Court with clean hands and petition is hopelessly barred by laches. He further contended that respondent No.3 possesses the requisite qualification for the post of Director Laboratories/Chemical Examiner (BS-20) and has requisite experience. He further contended that the case of respondent No.3 is not that of appointment on acting charge but is a' case of simply transfer and posting, which is permissible under section 4 of the Sindh Civil Servants Act, 1973. He, however, contended that no rules of transfer and posting and giving power to Chief Secretary to make such transfer and posting have so far been made. He conceded that the appointment of Director Laboratories/Chemical Examiner (BS-20) can only be made by the Chief Minister. He further conceded that there is no recommendation of Provincial Selection Board for appointment on acting charge. In support of his submissions he has relied upon the cases of Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others PLD 1990 SC 1013, Ayyaz Anjim v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169, Miss Rukhsana Ijaz .v. Secretary, Education, Punjab and others 1997 SCMR 167, Ghulam Abbas Mujahid v. Executive District Officer Agriculture, Multan and 3 others PLC 2008 (C.S.) 585 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54.
Learned A.A.-G. contended that the case of respondent No.3 is not that of appointment on acting charge basis but it is a temporary arrangement and does not amount to promotion of respondent No.3 and that approval of Chief Minister has not been obtained so also there is no recommendations of Provincial Selection Board.
We have considered t he submissions made by learned counsel and have gone through the record.
Petitioner's counsel has first attacked the posting of respondent No.3 as Director Laboratories/Chemical Examiner (BS-20) vide impugned notification on the ground that he does not possess the qualification to hold such post and in this respect has relied upon the Notification No.SOI(H)188/82 dated 31-5-1983 filed as annexure `F' with the petition. This notification has laid down three qualifications, either one of which has to be possessed for being appointed as Chemical Examiner, which post was subsequently renamed as Director Laboratories and Chemical Examiner/Chief Pathologist (BS-20) through letter of the Health Department dated 7-2-1998. The honourable Supreme Court in the case of Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and in the case of Dr. Ahmad Salman Waris, Assistant professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 has held that the issue of qualification of a civil servant raised by another civil servant is a matter which relates to terms and conditions of service which is exclusively within the jurisdictional domain of the Service Tribunal and a petition under Article 199 of the Constitution will be barred. In view of this state of law as laid down by honourable Supreme Court, this contention of the counsel for the petitioner fails and cannot be considered in this matter.
The next grievance of the petitioner is that respondent has been appointed as Director Laboratories/Chemical Examiner (BS-20) on acting charge basis on 5-5-2006 and has been holding such post since then and that the said post is required to be filled in by regular promotion and by not doing so the respondents are acting contrary to law. The petitioner counsel in this respect has relied upon the SL-121 of ESTACODE, Edition 2000 and also on the case of Pakistan Railways (supra).
So far the question of applicability of ESTACODE is concerned the same incorporates the law, rules, regulations, notifications, orders issued' by Federal Government and its ministries/departments and they mostly relate to the employees of Federal Government. In a way, what is contained in the ESTACODE has no direct application to the employees of the Provincial Government, but it may be stated that some principles dealing with the terms and conditions of service of the employees of Provincial Government which are not specifically dealt with by the law, rules, regulations, notifications, orders made by the Provincial Government and its ministries departments could be borrowed as guide for resolving the matter. Beyond this, in our view, the ESTACODE will not apply to the terms and conditions of service of the employees of Provincial Government.
It may, however, be noted that there is no specific period laid down in the rules for holding of a post on acting charge basis but the honourable Supreme Court in the case of Pakistan Railway relied upon by the counsel for the petitioner has observed that it is, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time.
As regards' further arguments of learned counsel for the petitioner that the very notification by which the respondent No.3 was appointed on acting charge as Director Laboratories/Chemical Examiner (BS-20) is illegal, on the ground that it has not been issued by competent authority and is without the recommendation of Provincial Selection Board. For dealing with these arguments, it will be necessary to reproduce the very notification which is as follows:--
"No. SOI-(S&GAD)2/4/06(H-87) GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT
Karachi, dated 5th May, 2006.
NOTIFICATION
Dr. Fazal Illahi Memon, Senior Medical Officer (BS-19), awaiting posting, is posted with immediate effect and until further as Director Laboratories / Chemical Examiner (BS-20), C.B. Laboratory, Karachi, in his own pay and scale, against an existing vacancy.
Chief Secretary Government of Sindh"
The counsel for respondent No.3 has contended that there has been no appointment of the respondent No.3 by this notification rather only transfer/posting order has been made and in this respect notification is issued by competent authority and is not illegal. He, however, relying upon the case of Jahangir Mirza (supra) contended that where the rules are not framed, the designated authority has power to make appointments.
The first question that needs to be considered in the present case is whether through notification, referred to above, the respondent No.3 has merely been transferred/posted as Director Laboratories/Chemical Examiner (BS-20) or it is an appointment of acting charge.
Notification does not use the word transfer nor of acting charge but only that of `posted'. In this respect rules need to be examined. The Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 seems to be relevant. Rule 3 of these rules provides that appointments to posts shall be made by promotion or transfer in accordance with Part-II of these rules and by initial appointment in accordance with Part-III of these rules. Sub-rule (1) of rule 9 appears in Part-II which deals with the case of transfer and it provides that appointment by transfer shall be made from amongst the persons holding appointments on regular basis in the same basis scale in which the post to be filled exists The table given under Sub-rule(2) of Rule 9 lays down the competent authority to make transfer. Serial No.10 of this table makes the Chief Secretary as competent authority to make transfer of officers holding post in BS-19. In terms of sub-rule(1) of Rule 9 transfer is required to be made from persons holding appointments on regular basis in the same basic scale in which the post to be filled exists. This means that respondent No.3 who holds appointment on regular basis in BS-19 could have been transferred by the Chief Secretary in the same basic scale i.e. of BS-19 and not it he higher post. The posting of respondent No.3 by the notification, therefore does not satisfy the condition of Sub-rule (1) of Rule 9 of the rules and apparently it is not a case of a mere transfer / posting.
The respondent No.3 who is a BS-19 officer and was awaiting posting could have been posted in his own scale and not in higher scale as posting on higher scale is governed by separate rules. Rules 6-A, 7 and 8 of Part-II of the rules lays down the method of appointment by promotion or transfer and these rules apparently deal with cases of regular appointment by promotion or transfer. Admittedly, the case of respondent No.3 is not that of regular appointment by promotion or transfer. Rule 8A of the Rules is as follows:--
8-A(1). Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) So long as a civil servant holds the acting charge appointment, civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post.
(3) In the case of a post in Basic Scale 17 and above, reserved under the rules to be filed by initial appointment, where the appointing authority is satisfied that no suitable officer of the grade in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service, as the case may be, in excess of the promotion quota.
(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.
(5) Appointment on acting charge basis shall be made on the recommendation of the Departmental Promotion Committee or the Provincial Selection Board, I or II as the case may be.
(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority.
(7) Acting charge appointment shall not confer any vested right for regular promotion to the post or grade held on acting charge basis.
(8) The civil servant appointment on acting charge basis shall assume full duties and responsibility of the post.
(9) The civil servant appointed on acting charge basis shall be entitled to draw fixed pay equal to the minimum pay at which his pay would have been fixed had he been appointed to the post on regular basis.
Explanation:-- Service rendered on acting charge basis in the grade applicable to the post shall not count for purposes of drawl of increments in the basic scale. Such service shall, however, count towards increments in the basic scale held immediately before appointment on acting charge basis."
It is apparent from the record that respondent No.3 was a senior medical officer (BS-19) and was awaiting posting. Through impugned notification the respondent No.3 was posted with immediate effect until further as Director Laboratories/Chemical Examiner (BS-20) and it is admitted before us both by counsel for the respondent No.3 as well as by learned A.A.-G. that it is a temporary posting. Transfer/posting is an objective term used in service law and is mostly interdependent. When a transfer of civil servant is made, as further corollary it results into posting or awaiting posting. A transfer/posting can be made in the same department or in the different departments or to an ex cadre post and even from, one government to another government or to local authority or corporation or body set up by Government. As discussed above, the case of respondent No.3 is not that of transfer/posting, rather the case of the respondent No.3 seem to be that of appointment on acting charge basis as he has been posted to a higher post from the one which he was holding. Rule 8A as noted above will apply to the case of respondent No.3 and his appointment could only be made by appointing authority and that too on the recommendation of Departmental Selection Board or Provincial Selection Board as the case may be. Rule 4(1) provides the table in which the appointing authority has been designated serial No.10 of which makes the Chief Minister as competent authority for appointment to the post in BS-19 and above.
Writ of quo warranto is in the nature of laying an information before a Court against a person who claim to hold public office, franchise or…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.