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Petitioner: Munir Ahmed Khan Kakar and another VS Respondent: Province of Balochistan through JUDGMENT
Court Name: Balochistan High Court Judge(s): Muhammad Hashim Khan Kakar, Muhammad Noor Meskanzai Title:Munir Ahmed Khan Kakar and another vs Province of Balochistan through
JUDGMENT
Reported As: PLD 2020 Balochistan 58 Result: Petition allowed Judgment JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J.---This petition under Article 187(2) read with Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") has been filed by Mr. Munir Ahmed Kakar, Member, Balochistan Bar Council and Judicial Commission of Pakistan, seeking implementation of the judgments, passed by the Hon'ble Supreme Court of Pakistan in the cases of "Mustafa Impex v. Government of Pakistan" (PLD 2016 Supreme Court 808) and "Mahmood Akhtar Naqvi v. Federation of Pakistan" (PLD 2013 Supreme Court 195), particularly in relation to the transfers and postings of civil servants and policy decisions taken by the Chief Executive of the Province without approval of the Cabinet. 2. Messrs Mazhar Ilyas Nagi and Munir Ahmed Kakar, contended that though the aforementioned judgments were passed in the year 2012/2016, respectively, and under Articles 129, 130 and 189 of the Constitution, the same are binding upon all the executive authorities and subordinate Courts, yet transfers/postings and policy decision are being made by the respondents in violation of the judgments in question as well as Schedule IV, Rule 22(2) of the Rules of Business Government of Balochistan, 2012. According to them, the Civil Servants are not only facing the menace of terrorism and target killing, but are also confronted with serious issues of governance due to continuous violation of the principles enunciated in the said judgments. To substantiate their point of view, they made a reference to the recent transfers/postings made by the respondents after moving the notice/resolution for a vote of no-confidence against the previous regime. The Deputy Commissioners, District Police Officers and Executive Engineers of those constituencies, members whereof had moved the said resolution for vote of no-confidence, were transferred by the then Chief Minister without consultation with the Chief Secretary, the Services and General Administration Department (S&GAD) and heads of the concerned departments. They further submitted that it is not end of the story, rather after change of the
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government, the same practice is still going on, which has ruined and lowered the efficiency of the provincial bureaucracy and in this regard, they once again made reference to the immature transfers of Mr. Qamar Masood, Additional Chief Secretary (Development), Mr. Rohail Baldch, Secretary Finance, Mr. Fateh Bangar, Secretary Education, Mr. Pasand Khan Buledi, Secretary Labour and Mr. Javed Shahwani, Secretary Health being made in violation of Schedule IV, Rule 22(2) of the Rules of Business merely on political considerations and pressure of vested groups. While concluding their arguments, they further submitted that the summaries in respect of the aforesaid officers, prepared by the Secretary S&GAD would show that their transfers have been made on political considerations. 3. On the contrary , Mr. Rauf Atta, learned Advocate General, while not feeling himself in a position to refute the said contentions, feebly challenged the maintainability of the instant petition in view of the bar, contained in Article 212 of the Constitution, as the matter pertains to the terms and conditions of service. He also contended that the powers under Article 187 can only be exercised by the Hon'ble Supreme Court of Pakistan and this Court has no jurisdiction to entertain a petition under the said provision of the Constitution. While concluding his arguments, he further submitted that under Section 10 of the Balochistan Civil Servants Act, 1974, every Civil Servant is required to serve anywhere within or outside the Province of Balochistan, in any post under the Federal Government, or any Provincial Government or Local Authority , or a Corporation or Body setup or established by any such Government. 4. So far as the contention of learned Advocate General regarding maintainability of the instant petition is concerned, we are not persuaded to agree with such contention for the following reasons: i. firstly, the petitioner, who does not fall within the definition of civil servant, as defined in Section 2(b) of the Balochistan Civil Servants Act, 1974, shall have no remedy before the Services Tribunal, functioning under Article 212 of the Constitution and he would be free to avail appropriate remedy. There is no cavil to the proposition that under Section 4 of the Balochistan Civil Servants Act, 1974, every civil servant shall hold office during the pleasure of the Government and, similarly, Section 10 thereof explicitly provides that every civil servant shall be liable to serve anywhere within or outside the Province of Balochistan in any post under the Federal Government, or any Provincial Government or Local Authority, or Corporation or Body setup or established by any Government, however, in the instant case, neither the aforesaid officials have refused to perform their duties, nor have they approached this Court for reversal of their transfer orders, rather the petitioner, who is representative of the legal fraternity, has approached this Court in the larger interest of general public; ii. secondly, there is no cavil to the proposition that the ambit and scope of the power of High Court under Article 199 of the Constitution is not as wide, as of the Supreme Court under Article 187 of the Constitution to pass any order or issue any direction or decrees for doing "complete justice" and it is also true that the Constitution makers conferred powers to issue such directions, orders, or decrees may be necessary for doing complete justice only to the Hon'ble Supreme Court and not to the High Court, however, in the instant case, the petitioner is not asking to determine/decide rights of civil servants itself, but has sought the implementation of the aforementioned judgments and issuance of directions to the respondents to act in accordance with law. According to our humble opinion, in addition to jurisdiction under Article 199(1)(c) of the Constitution to issue directions to any person including Government, this Court may also under Article 187(2) of the Constitution 1973 direct implementation of orders passed by the Hon'ble Supreme Court of Pakistan. In this regard, reference can be made to the cases of "Khushi Muhammad v. Inspector General of Police Punjab" (1999 SCMR 2868) and "AmanullahKhan Yousafzai v. Federation of Pakistan" (PLD 2011 Karachi 451); iii. thirdly, under Articles 189 and 190 of the Constitution, law declared by the Supreme Court becomes law of the land and is binding not only on all Courts in Pakistan, but also on all organs of the State and there is no escape from acceptance, obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court in the country and no one can be allowed to violate the same, while taking shelter behind technicalities. It would also be pertinent to mention here that effect of the Supreme Court judgment cannot be eroded or nullified through any executive or administrative instrumentality and it is by now settled that even legislature cannot destroy, annul, set aside, vacate, reverse or modify a final judgment of a Court of competent jurisdiction. In this regard reference can be made to the cases of "Mir Alam Gul v. Ismail", (PLD 1990 SC 926), "Ashiq Hussain v. the
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State" (PLD 1994 SC 879), "Province of the Puniab v. Haji Yaqoob Khan", (2007 SCMR 554), "Syed Sallad Hussain v. Secretary, Establisbment DivisionCabinet Secretariat Islamabad", (1996 SCMR 284), "Abdul Waheed v. Mst. Ramzanu", (2006 SCMR 489) and "Sh. Muhammad Rafique Gorela v. Islamic Republic of Pakistan" PLD 2006 SC 66 and iv. fourthly , to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and denial of vested right having accrued in favour , of any party would justify issuance of directions by High Court under constitutional jurisdiction to set right the wrong. This Court under Article 199(1)(c) of the Constitution has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Article 4 of the constitution. It is by now settled that when a statutory functionary acts mala fide or in a partial, unjust and oppressive manner , High Court, in exerc ise of its constitutional jurisdiction, has ample power to grant relief to the aggrieved party . In this regard, references can be made to the cases of "Pakistan Petroleum Ltd. v. Director General Mines and Minerals" (PLD 2011 Quetta 1), "Brig. Muhammad Bashir v.Abdul Karim (PLD 2004 Supreme Court 271)" and "Pakcom Limited v . Federation of Pakistan" (PLD 201 1 Supreme Court 44). 5. Reverting to merits of the case, it may be stated that public servants are always considered to be the backbone of a country and a capable and motivated bureaucracy has always played an instrumental role in the economic growth and overall prosperity in many countries. After independence, we inherited a strong bureaucracy having the capacity and capability to take decisions in the larger public interest and resist extraneous pressures and influences, while on the contrary , the political institutions were weak, as such, a tug of war started between the bureaucracy and the politicians and in order to tame the bureaucracy , political interference was started. Public servants as the name suggests are servant of the public and not the ruling government. Almost all the laws referring to civil servants resort to definition given in section 21 of the Pakistan Penal Code 1860 (P.P.C.), however , after emergence of the Pakistan, the situation changed overnight due to political interference in public service. This phenomenon was also noticed by the father of the nation, who, while addressing a batch of civil servants at Peshawar in April 1948, advised the civil servants in the following words: "The reason why I am meeting you is that I wanted to say a few words to you who are occupying very important positions in the administration of this province. The first thing that I want to tell you is that you should never be influenced by any political pressure, by any political party or any individual politician. If you want to raise the prestige and greatness of Pakistan you must not fall victim to any pressure but do your duty as servants of the people and the state, fearlessly and honestly. The services are the backbone of the State. Governments are formed. Governments are defeated. Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business." 6. The situation further deteriorated in early seventies, when serious attack was made on bureaucracy's neutrality and more than 1300 senior bureaucrats were compulsorily retired and administrativ e reforms were introduced, while removing their constitutional protection. Such reforms not only undermined the bureaucracy , but put it on fast track towards complete impotency and compromises. 7. In order to cope up with the situation, tending to facilitate expeditious disposal of Government business and to meet the convenience and requirement of the public, in exercise of the powers conferred by Article 139 read with Article 129 of the Constitution, "the Balochistan Government Rules of Business, 2012." were framed and Rule 22(1) thereof reads as under: "22.(I) Transfers of officers shown in column 2 of Schedule III shall be made by the authorities shown in column 3 thereof or specified by the Government from time to time; (2) The Services and General Administration Department shall be consulted if it is proposed to: (a) transfer the holder of a tenure post before the completion of his tenure or extend his period of tenure: (b) require an officer of BPS-17 and above to hold charge of more than one post for a period exceeding three months. Note- T enure of posts shown in column I of Schedule IV shall be as shown in column 2 thereof.
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Similarly Schedule III of the Rules of Business, 2012 reads as follows: SCHEDULE III OUTSIDE THE SECRETARIAT 1 2 3 1. Office of the all Pakistan unified group e.g., DMG, Police Group. etc.Services and General Administration Department in consultation with the Department concerned. 2. Other officers holding senior scale posts normally held by officers of the Civil Service of PakistanDitto. 3. Heads of Attached Department Ditto. 4. All other Officers not covered by S.No. I to 3 above.Head of the Administrative Department in respect of BPS-16 and above and by the Head of the Attached Department/ Commissioners in respect of BPS-I to BPS- 15 or as may be specified by the Government from time to time. 5. Officer of Police Service of Pakistan and Balochistan Police.Home and Tribal affairs Department in consultation with Inspector General of Police.
IN THE SECRETARIAT 6. Secretaries Services and General Administration Department 7. Other Officers of and above the rank of Section Officer-do- (a) Within the same Department Secretary (b) W ithin the Secretariat from one Department to another.a. In case of BPS-20 and above by the Chief Minister; b. In case of BPS-18 and BPS-19 by the Chief Secretary; and In case of BPS-17 by the Secretary S&GAD.
or as may be specified by the Government from time to time 8. Officials upto the rank of Superintendent:- (a) Within the same Department Secretary (c) W ithin the Secretariat from one Department to anotherSecretary S&GAD
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8. Keeping in view the continuous violation of the Rules of Business and frequent transfers/postings on political and extraneous considerations, the Hon'ble Supreme Court of Pakistan in the case of "Mahmood Akhtar Naqvi v. Federation of Pakistan" (PLD 2013 SC 195), commonly known as Ms. Anita Turab's case, held as under: "(i) Appointments, Removals and Promotions : Appointments, removals and promotions must be competent made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest. (ii) Tenure, posting and transfer : When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially re-viewable. (iii)Illegal orders: Civil servants owe their first and foremos t allegiance to the law and the Constitutio n. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rules based norms; instead in such situations, they must record their opinion and, if necessary , dissent. (iv) OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially re-viewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest." 9. It is also worth mentioning that in pursuance of the aforesaid guidelines, the then Chief Secretary Balochistan issued Notification No.SO(Judl:) 790/ S&GAD/2012/1218-1368 dated 13th December, 2012; operative part whereof reads as under: "All concerned are directed to strictly follow the relevant law, rules, regulations and policies issued by the Government time to time dealing with the above referred matters of civil servants. Moreover , above guidelines/instructions set forth by the Hon'ble Supreme Court of Pakistan must be implemented in letter and spirit. The failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case may expose him to contempt proceedings under Article 204(2) (a) of the Constitution of Islamic Republic. of Pakistan." 10. Mr. Mazhar Ilyas Nagi contended that though the judgment in question was passed in the year 2012 and under Articles 129, 130 and 189 of the Constitution, the same is binding upon all the. executive authorities of the Province as well as subordinate Courts, yet transfers and postings are being made by the respondents in violation of the judgment in question, notification issued by the then Chief Secretary as well as Schedule IV, Rule 22(2) of the Rules of Business, 2012. During the course of hearing, we were informed that the respondents in derogation of the Rules of Business are running the affairs of the government and making transfers postings according to the provisions of Notification No.S.O.(R-1)-3(9)/2012 S&GAD/2016-2215 dated July 17, 2012, whereby Ministers incharge have been declared as authority for postings/transfers of employees in BPS-I. 7 and below and the Chief Minister in case BPS-1 8 and above. The said notification goes to contrary to the Rules of Business, 2012 and it is not a statutory instrument and having no force of law. Such notification cannot be issued in derogation of Rules of Business, framed in exercise of power under Article 139. In exercise of these powers, Ministers have been frequently transferring employees almost on monthly and sometimes on weekly basis. The said notification has been issued in super-session of notification No. S. O. (R-1)-3(9)S&GAD/2011/2846-2946 dated 2nd November, 2011 and it has no value being contrary to the Rules of Business of 2012. Such notification cannot hold the field for a moment being contrary to the law and no transfers/postings could be made in violation of the Rules of Business. While holding such view, we are fortified from the well celebrated judgment of the Hon'ble Supreme Court of Pakistan in the case of "Mustafa Impex Karachi v.Government of Pakistan"(PLD 2016 SC 808), wherein the Hon'ble Supreme Court held as under: "Following the Rules of Business, 1973 was mandatory and binding on the Government and a failure to follow them would lead to an order lacking any legal validity. Framer of rules was as much bound by the content thereof as anyone else was subject thereto. Constitutionally mandated rules (such as the Rules of Business, 1973) were
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closely intertwined with the concept of good governance for and in the public interest. Allowing a departure therefrom would be detrimental to open and transparent forms of governance. To allow the Executive to depart from the language of the Rules of Business, 1973 in its discretion would be to permit, and legitimize, unconstitutional executive actions." 11. The moot questions, which require to be answered are as to whether the Minister has power to post or transfer any officer or whether such powers can be granted to him being not permitted by the rules? Before answering the said questions and dilating upon the rival contentions of the parties, it would be appropriate and advantageous to reproduce herein below Rule 6(1) and Rule 8(1) and (2) of the Rules of Business, 2012, which lay down, the functions of the Provincial Minister and the Secretary: "6. Functions of the Minister and Advisors. (1) Minister . A Minister shall: (a) be responsible of policy matters and for the conduct of business of his Department; Provided that in important political, economic or administrative matters, the Minister shall consult the Chief Minister . (b) submit cases to the Chief Minister through Chief Secretary as required by the provisions of these rules; (c) keep the Chief Minister informed of any important case disposed of by him without reference to the Chief Minister; and (d) conduct the Business relating to his Department in Assembly; "8. (1). "A Secretary shall: (a) assist the Minister in formulation of policy and bring to the notice of the Minster cases which are required to be submitted to the Chief Minister under the rules; (b)) duly execute the sanctioned policy; (c) be the official head of the Department and be responsible for its efficient administration and discipline, and for the proper conduct of business assigned to the department under rule 3; (d) submit all proposals for legislation to the Cabinet with a approval of the Minister; (e) be responsible to the Minister for the proper conduct of the business of the department and keep him informed about the working of the department and of any important cases disposed of without reference to the Minister; (f) keep the Chief Secretary informed of important cases disposed of in the Department; (g) where the Minister's orders appear to involve a departure from rules, regulations or Government policy , resubmit case to the Minister inviting his attention to the relevant rules, regulations or Government policy and if the Minister still disagrees with a Secretary , the Minister shall refer the case to the Chief Minister through Chief Secretary for orders; (h) subject to any general or special orders of the Government, issue orders spec ifying the cases or class of cases which may be disposed of by an officer subordinate to the Secretary; and (i) be responsible for the careful observance of these rules in his Department; 2. While submitting a case for the orders of the Minister, it shall be duty of the Secretary to suggest a definite line of action." 12. A bare perusal of the aforementioned rules would show that the functions of Minister and Secretary are altogether different. The Minister only attends to policy matters and conducts the business relating to his department in the provincial assembly; whereas, the administration of the department vests in the departmental hierarchy acting through the Secretary. His position is at the apex of the department, any attempt, therefore, to sideline or marginalize Secretary or to circumvent him or to otherwise curtail his powers directly or indirectly would be contrary to law and of no legal effect. Besides, assisting the Minister in formulation of policy, the Secretary being official head of the department, is responsible for its efficient administration and discipline, and for the proper conduct of business assigned to the Department under rule 3. In such view of the matter, we are of the considered view that the Minister has nothing to do with the transfers/postings of civil servants and the Notification dated July 17, 2012, whereby the powers of transfers/ postings were assigned to the Minister, is absolutely illegal, void ab initio. The said Notification is not only against the principle of Delegatus non potest delegare but is also runs against the Rules of Business, 2012. While holding this view we are fortified from the
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dictum laid down by the Hon'ble"Supreme Court of Pakistan in the case of "Khan Muhammad v. The Chief Secretary Government of Balochistan" (Civil Petition No.2812 of 2017), wherein the Hon'ble Mr. Justice Qazi Faez Isa, speaking for the Court, observed as under: "We therefore have no hesitation to hold that the notification of February 3, 2014 to the extent of item 12 (reproduced in paragraph 5 above) which grants the Minister the power to post/transfer a civil servant is ultra sires the Rules and the scheme of governance envisaged in the Constitution and therefore is of no legal effect. Needless to state that if there are similar notifications or powers granted to ministers with regard to the posting/transfer of civil servants at any other department, which negate the Rules and the scheme of governance envisaged in the Constitution those would also be of no legal effect." 13. It is pertinent to observe that in view of the Government Servants Conduct Rules, 1979; a public servant stands restrained from approaching a legislator. Similarly, a government servant cannot take part in political activities nor supposed to use political influence because it amounts to misconduct, as defined in Rule 2(1)(f) of the Balochistan (Efficiency and Discipline) Rules, 1992. For the sake of ready reference, the said rule is reproduced hereunder: 2(I). "No Government servant shall, directly or indirectly, approach any Member of the National Assembly or a Provincial Assembly or any other non-official person to intervene on his behalf in any matter." Unfortunately, contrary to said rule, through the Notification dated 17th July, 2012 the power of transfer/posting has been entrusted to Minister, which compelled the government servants to have relations and affiliation with the political parties, with the result, some of the employees have been nominated/elected as members of central committees…
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