Sindh Civil Servants Review Case
Sindh Civil Servants Review Case
Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ
Versus
Civil Review Petitions Nos.193, 194, 199, 203, 204, 392, 387, 388, 389, 390, 391, 393, 394, 396,
397, 399, 400, 401, 402, 403, 409, 410, of 2013, C.R.P. No.125 of 2014 in Constitutional Petition
No.71 of 2011, C.R.Ps. Nos.398, 407, 408, 411 of 2013 in Civil Appeal No.12-K of 2012, C.R.Ps.
Nos. 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 of 2013, Criminal R. Ps. Nos. 38, 39,
40, 41 of 2014 in Criminal O. P. 89 of 2011, C.R.P. No. 412 of 2013 in C.M.A. 310-K of 2012 in
Criminal O.P. 89 of 2011, Criminal M.A. No. 860 of 2013 in Criminal R.P. Nil of 2013 in Criminal
O.P. 89 of 2011, C.M.A. No. 6628 of 2013 in S.M.R.P. 239 of 2013 in C.A. 12-K of 2012, C.M.A.
No.4568 of 2013 in C.R.P. No.Nil of 2013 in C.A. 98-K of 2010 and Civil Petition No. 968 of 2014,
decided on 5th January, 2015.
----Art. 184(3) & Part II, Ch. I [Arts.8 to 28]---Constitutional jurisdiction of the Supreme Court---
Scope---Question of public importance---Requirement of Art. 184(3) of the Constitution was that
if the Supreme Court considered that a question of public importance with reference to the
enforcement of any of the fundamental rights conferred by Chapter I of Part II of the
Constitution was involved, it had the jurisdiction to pass appropriate orders notwithstanding
that there might be an alternate remedy---Word 'consider' used in the Art.184(3) of the
Constitution related to subjective assessment of the Supreme Court---Supreme Court was the
final authority upon the matters affecting judicial determination on the scope of Constitutional
provisions, thus, once the Supreme Court arrived at the conclusion that a question of public
importance having nexus with the fundamental rights guaranteed by the Constitution had been
raised, the exercise of its jurisdiction under Art.184(3) could not be objected to either by the
Government or by any other party.
----Chapter II [Ss.3 to 22]--- Constitution of Pakistan, Ch. I, Part. II [Arts.8 to 28] & Art. 184(3)---
Service Tribunals Act (LXX of 1973), S.3---Civil service---Legislation effecting rights of a civil
servant---Civil servant filing constitutional petition before the Supreme Court---Maintainability---
Civil Servant, being a citizen of Pakistan, equally enjoyed the fundamental rights conferred by
Chapter 1 of Part II of the Constitution---When an impugned legislative instrument was violative
of the Constitution and the fundamental rights of the civil servant, and issues raised in the
constitutional petition were of public importance having far reaching effects on service
structure, the petition under Art. 184(3) of the Constitution would be maintainable---Perception
that a civil servant could only seek redressal of his grievance from the Service Tribunal or from
any other forum provided by the Civil Servants Act, 1973 was thus not correct. [p. 500] C
Watan Party and others v. Federation of Pakistan PLD 2012 SC 292 and Tariq Aziz-ud-Din
and others's case 2010 SCMR 1301 ref.
(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---
----Rr. 3(2), 4, 6, 8 & 9(1)---Sindh Civil Servants Act (XIV of 1973), Ss. 5 & 8---Constitution of
Pakistan, Art. 188---Review petition---Absorption of 'government officers' from different
departments into the Provincial Government as 'civil servants'---Legality---Question as to
whether the Chief Minister/competent authority was empowered under R. 9(1) of the Sindh
Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb the beneficiaries
from different organizations to Provincial Service or cadre or post---Rule 9(1) of Sindh Civil
Servants (Appointment, Promotion And Transfer) Rules, 1974 spoke of appointment by transfer
to be made from amongst the persons holding appointments on regular basis mentioned in
column 2 of the Table given under the said Rule---Word "person" as used in said R. 9(1) would,
therefore, relate to the officers, who were civil servants and mentioned in column 2 of the Table
given under the said Rule---Word "person" could not be given an ordinary meaning beyond the
scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974---Rule 9(1) of the Sindh Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974, did not empower the Government or selection authority
to appoint a civil servant or any other person by transfer to any other cadre, service or post
without his eligibility, qualifications and the conditions laid down under Rr. 3(2), 4, 6 & 8 of the
Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Section 8 of the Sindh
Civil Servants Act, 1973 made a class of civil servants for proper administration and such class
was not interchangeable at the whims of the selection authorities and/or the Government to
extend favours to their blue eyed---No discretion was given under S. 5 of the Sindh Civil Servants
Act, 1973, to appoint any person in civil service against a civil post in the manner other than
prescribed by the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Rule
9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not confer
permanent status on civil servant on his appointment by transfer nor it contemplated his
absorption in the transferee department as a consequence of his appointment---Neither any
procedure nor any mechanism was provided under the Sindh Civil Servants Act, 1973 or the
Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, to treat appointment
by transfer as absorption in the transferee department---Neither a person could be absorbed
under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, nor a civil
servant/non-civil servant/deputationist could be allowed to travel horizontally outside his cadre
to penetrate into a different cadre, service or post through an appointment by transfer---Rule
9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, could not be
used as a tool to allow horizontal movement of a civil servant from his original cadre to another
cadre against scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974---Any appointment by transfer under R.9(1)
of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had to be for a fixed
term, and, on completion of such term, the civil servant had to join back his parent
department---Concept of absorption of a civil servant and/or Government servant was foreign
to the Sindh Civil Servants Act, 1973, as well as R. 9(1) of the Sindh Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974---Said Rule did not permit transfer of non-civil servant to a
non-cadre post or to a cadre post---Review petition was dismissed accordingly.
(e) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---
----Rr. 3(2) & 9-A---Constitution of Pakistan, Art. 188---Review petition---Civil servant rendered
surplus---Appointment to any post in any department or office of Government---Scope---Rule 9-
A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had been
introduced with the object to accommodate the persons who were rendered surplus by
abolition of their posts or the organization in which they were working had been taken over by
the Provincial Government---Said Rule could not be used as a tool to accommodate a person by
abolishing his post with an object to appoint him by transfer to a cadre or service or post in
deviation of R. 3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974,
which was a condition precedent for appointment to such post---In order to exercise powers
under R.9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974,
there had to be some justification for abolition of the post against which such person was
working---Such justification should come from the Department and/or organization which shall
be in consultation with the Services and General Administration Department and approved by
the competent authority---Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and
Transfer) Rules, 1974, did not permit appointment by transfer of a non-civil servant to any other
Department and/or organization controlled by the Government to a post which restricted the
transfer under R. 3(2) of the said Rules---Person could only be appointed by transfer under R. 9-
A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, if he had the
eligibility, matching qualifications, expertise coupled with the conditions laid down under R. 3(2)
of the said Rules for appointment to such post---Rule 9-A did not permit transfer of a non-civil
servant to a cadre, service or post meant for a civil servant, recruited in the cadre or service or
post after competitive process---Such an appointment by transfer in the nature of absorption
would only be permissible, if the pre-conditions laid under R. 9-A of the Sindh Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974, were met---Review petition was dismissed
accordingly.
(f) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---
----R. 9(1)---Sindh Councils (Unified Grades) Service Rules, 1982, R.12(5)--- Constitution of
Pakistan, Arts. 4, 9 & 188---Review petition---Non-civil servants from different departments of
Provincial government---Absorption of such non-civil servants into the Provincial government as
'civil servants'---Legality---Contention of non-civil servants/petitioners that they were absorbed
from different organizations to Sindh Councils (Unified Grades) Service under R. 9(1) of the
Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, read with R. 12(5) of
the Sindh Councils (Unified Grades) Service Rules, 1982--- Validity---Power to appoint by transfer
under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, would
only extend to a civil servant---Petitioners who were not members of the Unified Services and
were wrongly absorbed in the Service of Unified Group, in deviation of the Sindh Councils
(Unified Grades) Service Rules, 1982, could not be allowed to continue in the Unified Services
Group---Provincial Chief Minister or the relevant Selection Board could not induct any stranger
in the service of Unified Group either by exercising powers under R. 9(1) of the Sindh Civil
Servants (Appointment, Promotion and Transfer) Rules, 1974, or under R. 12(5) of the Sindh
Councils (Unified Grades) Service Rules, 1982---Such act on the part of the Chief Minister or the
Selection Board had circumvented the very framework of the Sindh Councils (Unified Grades)
Service Rules, 1982, by introducing a parallel system based on discrimination and favourtism,
which the law did not recognize---Any such induction was against the recognized norms of
service law and, therefore, such inductees/petitioners were liable to be repatriated to their
parent departments forthwith---Absorption of the petitioners under the garb of 'appointment
by transfer' in the Unified Services Group had directly affected the rights of the employees in the
service, guaranteed under Arts. 4 & 9 of the Constitution---Review petition was dismissed
accordingly.
----"Gallantry"---Meaning.
----S. 9A---Civil servant exhibiting act of gallantry while performing his duties---Reward---Out of
turn promotion---Scope and applicability---Police personnel---Word "gallantry" as used in S. 9-A
of the Sindh Civil Servants Act, 1973, could only apply to police personnel and award and reward
on their gallantry performance should be conferred upon them and not to other species of civil
servants---Such award or reward, however, should be given under a transparent process after
objective assessment of their valour by a committee, in a just manner under the prescribed
rules.
(i) Constitution of Pakistan---
In re: Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829
distinguished.
----Preamble---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 3(2)
& 8---Constitution of Pakistan, Art.188---Review petition---Civil service---"Abolition of post"---
Scope and pre-conditions---Term 'abolition' had not been defined in the Sindh Civil Servants Act,
1973---Department could only abolish a post with the concurrence of the Services and General
Administration Department (S&GAD)---Abolition of a post was permissible in case, if the
department required restructuring, reform or to meet exigency of service in public interest---
Department could abolish a post for justiciable reason---Provincial Government, in the present
case, had abolished some posts in individual cases with the object to accommodate a civil
servant or government servant to appoint him by transfer to a post, service or cadre contrary to
the restrictions contained in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules,
1974---Supreme Court directed that in future when a post had to be abolished within the
Department and/or within the statutory body or organization controlled by the Provincial
Government, the Department shall seek concurrence from the Services and General
Administration Department (S&GAD) coupled with the reasons justifying abolition---Review
petition was dismissed accordingly.
----S. 3(2)---Constitution of Pakistan, Arts. 175, 188, 199, 212 & 240---Civil Procedure Code (V of
1908), S. 9---Sindh Civil Courts Ordinance (II of 1962), S. 7---Civil servant---Matter relating to
terms and conditions of service of civil servant---Ouster of jurisdiction of civil courts and High
Courts---Question as to whether a civil servant could approach the (Sindh) High Court in a suit or
in a constitutional petition in relation to the terms and conditions of his service---Civil and
constitutional jurisdictions would not lie in respect of the suits or petitions filed with regard to
the terms and conditions of civil servants---Section 3(2) of the Service Tribunals Act, 1973
provided that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the
terms and conditions of service of civil servants, including the disciplinary matters---Jurisdiction
of all other courts was barred by the provisions of the Service Tribunals Act, 1973, read with Art.
212 of the Constitution---All civil courts, including a Judge (in Chambers) of High Court of Sindh,
exercising jurisdiction on the original side as a civil court under the Civil Procedure Code, 1908,
could not entertain a civil suit of a civil servant relating to the terms and conditions of his
service---Article 212 of the Constitution ousted the jurisdiction of High Courts and civil courts in
respect of the matters pertaining to terms and conditions of civil servants---Provisions of Art.
212 of the Constitution did not confer a concurrent jurisdiction to civil courts, High Courts and
Tribunals---Ouster of jurisdiction contemplated under the Art. 212 of the Constitution was a
constitutional command, and, therefore, of necessity restricted the jurisdiction of civil courts
and High Courts on the subject, which squarely fell within the exclusive domain of Service
Tribunals---Exercise of jurisdiction by way of suit and constitutional petition filed by a civil
servant with regard to his terms and conditions of service was violative of Arts. 175, 212 & 240
of the Constitution and the law---Review petition was dismissed accordingly.
----Civil servant, status of---Scope---Non-civil servant could not be conferred the status of a civil
servant.
----R. 12A---Service Tribunals Act (LXX of 1973), S. 3(2)---Civil service---Date of birth, alteration
in---Forum---Service Tribunal, jurisdiction of---Mode of correction in the date of birth of a civil
servant was provided under R. 12A of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, which was part of the terms and conditions of service of a civil servant---Correction
in date of birth by a civil servant could not be done through a civil suit (in view of the bar
contained under Art. 212 of the Constitution)--- Civil servant had to approach the Service
Tribunal for alteration in his date of birth.
Dr. Muhammad Aslam Baloach v. Government of Balochistan 2014 SCMR 1723 ref.
----R. 12A---Civil servant---Date of birth, alteration in---Scope---Civil Servant could not seek
alteration in his date of birth at the verge of his retirement.
Dr. Muhammad Aslam Baloach v. Government of Balochistan 2014 SCMR 1723 ref.
----S. 22--- Service Tribunals Act (LXX of 1973), S. 4(1)(a)---Constitution of Pakistan, Arts. 4, 9,
10A, 25, 184(3) & 188---Review petition---Civil service---Expeditious remedy from the Service
Tribunal, hindrance to---Civil servant could not approach the Service Tribunal unless he
exhausted the remedy of departmental appeal/representation under S. 22 of the Civil Servants
Act, 1973---Section 4(1)(a) of the Service Tribunals Act, 1973, provided that a civil servant could
approach the Service Tribunal, subject to his exhausting remedy under S. 22 of the Civil Servants
Act, 1973, after lapse of 90 days from the date on which such appeal/application was so
preferred---Civil Servant aggrieved by an order of the department had to file a representation or
appeal within 30 days of passing of such order and if the said authority did not decide his
appeal/representation within 90 days, he could prefer an appeal before the Tribunal, after lapse
of time as contained under S.4(1)(a) of the Service Tribunals Act, 1973---Supreme Court
observed that provisions of S. 22 of the Civil Servants Act, 1973 and S. 4 of the Service Tribunals
Act, 1973, were required to be re-examined after insertion of Art. 10A in the Constitution, as it
restricted a civil servant from seeking expeditious remedy from the Service Tribunal which was
constituted under the command of the Constitution; that after the promulgation of Art. 10-A of
the Constitution, it was imperative to re-examine the existing law which apparently barred the
filing of appeal in the Service Tribunal before the passage of mandatory 90 days, but practically
for 120 days; that in certain situations a civil servant may face wrath and vendetta of his
superiors, if he refused to carry out their illegal orders, and in such a situation, his
representation etc. to the concerned authority to seek redressal of the wrong committed
against him may be ignored or outright rejected by the authorities under political influence or
for ulterior motives, leaving him with no option but to wait for mandatory period of 120 days to
enable him to file an appeal etc. before the Service Tribunal; that in view of such problems faced
by the civil servants due to lengthy process of filing appeal in the Tribunal and availing of relief,
it was imperative to provide an efficacious and expeditious alternate remedy to civil servants by
way of allowing them to approach the Service Tribunal, Federal or Provincial, without waiting for
a period of 90 days, as contained under S.4(1)(a) of the Service Tribunals Act, 1973 by preferring
an appeal against the orders; that at touchstone of Art. 10-A of the Constitution, the issues that
were required to be answered were whether S. 4(1)(a) of the Service Tribunals Act, 1973,
restricting a civil servant from filing appeal to the Tribunal after lapse of 90 days was violative of
the spirit and command of Art. 10-A of the Constitution, and whether time frame provided by S.
4 of the Service Tribunals Act, 1973 debarring an aggrieved civil servant to approach the Service
Tribunal amounted to denial of the relief to him in terms of Arts. 4, 9 & 25 of the Constitution---
Supreme Court further observed that it was necessary to take up said issues in its suo motu
jurisdiction under Art. 184(3) of the Constitution in a separate proceedings---Review petition
was dismissed accordingly.
Syed Mehmood Akhter Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.
Sarwar Khan Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa
Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary
Services (S&GAD) for Petitioners/Appellants (in C.R.P. 199 of 2013).
Shabbir Ahmed Awan, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 203
of 2013).
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioners/Appellants
(in C.R.P. 392 of 2013).
Syed Ali Zafar, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 72 of 2013).
Tariq Mehmood, Senior Advocate Supreme Court for Petitioners/Appellants (in Criminal
R.Ps. 70 and 71 of 2013 and C.P. 968 of 2014).
Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioners/Appellants (in
C.R.P. 194 of 2013).
Shabbir Ahmed Awan, Advocate Supreme Court appeared and submitted written
arguments on behalf of Ibadul Hasanin, Advocate Supreme Court for
Petitioners/Appellants (in C.R.P. 204 of 2013).
Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 393,
400, 407, 408 and 411 of 2013).
Petitioners/Appellants in person (in C.M.A. 4568 of 2013 in C.R.P. Nil of 2013 in C.A. 98-
K of 2010, Criminal R.Ps. 38, 75, 401 of 2013, Criminal R.Ps. 38, 40 and 41 of 2014).
Hamid Khan, Senior Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 387 of
2013).
Dr. Farough Naseem, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 193,
396 of 2013 and 125 of 2014).
M. Aqil Awan, Senior Advocate Supreme Court for Petitioners Nos.1 to 3 (in C.R.P. 409 of
2013).
M. Aqil Awan, Senior Advocate Supreme Court for Petitioners/Appellants (in Criminal
O.P. 121 of 2013 and Criminal M.A. 760 of 2013 in Criminal O.P. 89 of 2011).
Baz Muhammad Kakar, Advocate Supreme Court for Petitioners Nos.4 to 8 (in C.R.P. 409
of 2013).
Baz Muhammad Kakar, Advocate Supreme Court for Petitioners/Appellants (in C.R.P.
394 of 2013).
Shabbir Ahmed Awan, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 399
of 2013, Criminal R.Ps. 76, 83 of 2013, Criminal M.A. 860 of 2013 in Criminal R.P. Nil of
2013 in Criminal O.P. 89 of 2011).
Abdur Rehman Siddiqui, Advocate Supreme Court for Petitioners/Appellants (in C.R.P.
410 of 2013).
M. Shoaib Shaheen, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 398
and 412 of 2013).
Adnan Iqbal Ch., Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 74
of 2013).
Yawar Farooqui, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 77
of 2013).
Abid S. Zuberi, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 80
of 2013).
Irfan Qadir, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.Ps. 78 and
84 of 2013).
M. Munir Paracha, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.Ps.
81 and 82 of 2013).
Anwar Mansoor Khan, Senior Advocate Supreme Court for Petitioners/Appellants (in
C.M.A. 6628 of 2013 in S.M.R.P. 239 of 2013).
Nemo for Petitioners/Appellants (in Criminal M.A. 460 of 2013 in Criminal O.P. 89 of
2011).
Mian Abdul Rauf, Advocate Supreme Court for Petitioners/Appellants (in Criminal O.P.
103 of 2013).
Z.K. Jatoi, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 39 of
2014).
Sarwar Khan, Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa
Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary
Services (S&GAD) for Respondents.
Dates of hearing: 5th, 6th, 10th June, 15th to 17th and 21st to 24th October, 2014.
JUDGMENT
Province of Sindh etc. v. Farooq Azam Memon by Mr. Sarwar Khan, Additional A.-G. Sindh
The Additional Advocate-General Sindh has contended that Constitutional Petitions Nos.71 of
2011, 21, 23 and 24 of 2013, filed by the petitioners under Article 184(3) of the Constitution,
challenging the vires of the six impugned legislative instruments were not competent. According
to him, the issues raised in these Petitions were not of public importance. He contended that
individual grievances of 30 Civil Servants relatable to the terms and conditions of service fall
outside the purview of Article 184(3) of the Constitution. He contended that in such cases this
Court, time and again, has declined to entertain such Petitions. While relying upon the case of
Ishtiaq Ahmed Sheikh and others v. Messrs UBL and others (PLD 2006 SC 94), the learned
Additional Advocate-General has contended that Article 184(3) has excluded adjudication of
service matters. He next contended that the petitioners could have approached the Sindh
Service Tribunal for redressal of their grievances, which was equally competent to examine the
vires of the legislative instruments.
2. He further contended that the petitioners have failed to establish that their fundamental
rights were violated by promulgation of the impugned legislative instruments, to give cause to
them to invoke jurisdiction of this Court under Article 184(3). In support of his contentions, he
has relied upon the judgments in the cases of All Pakistan Newspapers Society (APNS) etc v.
Federation of Pakistan and others (PLD 2004 SC 600) and Dr. Akhtar Hassan Khan and others v.
Federation of Pakistan and others (2012 SCMR 455).
3. He next contended that the judgment under review has made Rule 9(1) of the Sindh Civil
Servants (Appointment, Promotion and Transfer) Rules, 1974 redundant, as the powers
exercised by the competent authority under the said rule have been done away with. He
contended that the principles enunciated by the impugned judgment were applied
retrospectively. According to the learned Addl. Advocate General, if the law is declared ultra
vires of the Constitution, the effect of such declaration would operate prospectively. In support
of this contention, he has relied upon the cases of Muhammad Younis and others v. Essa Jan and
others (2009 SCMR 1169) and Mazhar Ali v. Federation of Pakistan/President of Pakistan
through the Secretary Establishment Division and others (1992 SCMR 435). He further
contended that the Officers/employees serving in different departments of the Sindh
Government for years together, were ordered to be repatriated to their Parent Departments,
after the termination of their lien by lapse of time. The learned Additional A.-G. contended that
the impugned judgment has attributed mala fides to the legislature, which finding is against the
settled principles of law. He has relied upon the judgment in the case of Fauji Foundation and
another v. Shamimur Rehman (PLD 1983 SC 457) and prayed that the review be allowed on the
aforesaid grounds.
C.R.Ps. Nos. 388, 389, 390, 391, 397 of 2013 and Criminal R.P. 73 of 2013
By Raja M. Ibrahim Satti, Senior Advocate Supreme Court
4. Raja M. Ibrahim Satti, learned counsel for petitioner(s) has contended that this Court has
examined the vires of legislative instruments while interpreting the Articles of the Constitution
without issuing notices to the Attorney General for Pakistan in terms of Order XXVII-A, Rule 1,
C.P.C., therefore, the impugned judgment is not sustainable. In support of his contention he has
relied upon the case of Federation of Pakistan thr. Secy, M/o of Law etc. v. Aftab Ahmed Khan
Sherpao (PLD 1992 SC 723). He next contended that the Petition was not maintainable under
Article 184(3) of the Constitution as the petitioners were seeking redressal of their individual
grievances and were not seeking enforcement of their fundamental rights.
5. It was next contended by the learned counsel that mala fides could not be attributed to the
Provincial Legislature, which has passed the legislative instruments, in exercise of the powers
guaranteed by the Constitution. According to the learned Counsel, the Provincial Legislature was
competent to legislate law, which is their divine right, therefore, the legislative instruments
were wrongly struck down. He in support of his contentions has relied upon the case of Imran
Ullah v. The Crown (PLD 1954 Federal Court 123).
6. He further contended that in compliance with the impugned judgment, the Sindh Chief
Secretary has issued notification repatriating the petitioners to their parent Departments,
without affording them the right of audience. The learned counsel further argued that the issue
of 'absorption' of the petitioners was a past and closed transaction; and by the impugned
judgment this honorable Court has erroneously undone absorption of the petitioners by
ordering their repatriation retrospectively.
Syed Altaf Ali and others v. Chief Secretary Sindh etc. by Syed Ali Zafar, Advocate
Supreme Court
7. Syed Ali Zafar, counsel for the petitioners, has contended that this honourable Court has
wrongly entertained the issue of appointment of the petitioners by nomination in excess of the
prescribed quota in exercise of its original jurisdiction under Article 184(3) of the Constitution.
According to the learned Counsel such an issue could only be adjudicated upon by this Court
under Article 212(3) of the Constitution, which Article deals with the service matters.
8. He next contended that the Court ought to have decided the issue on merits and not on the
basis of the list provided by the Sindh Government. The counsel referred to Rule 5(4)(b) of the
West Pakistan (Executive Branch) Rules, 1964, which provides for promotion of various
categories of Civil Servants by nomination. He submitted that if the appointments of the
petitioners by nomination are held to be illegal then all appointments made under Rule 5(4)(b)
should be declared illegal and not just those nominated since 1994. He submitted that the
aforesaid rule provides for preparation of lists B and C but no such lists were maintained by the
Sindh Government for the nomination of the petitioners as a consequence whereof they did not
have the opportunity to challenge it. He submitted that a cut-off date should have been
determined by the Sindh Government for examining the appointments made in excess of the
quota. Lastly, the learned Counsel contended that departmental construction of a statute,
though not binding, can be taken into consideration, especially when it was followed by the
department consistently. In support of his contention he has relied upon the case of
Muhammad Nadeem Arif and another v. Inspector-General of Police, Punjab, Lahore and others
(2011 SCMR 408).
Yar Muhammad Bozdar v. Province of Sindh etc. by Mr. Tariq Mahmood, Senior
Advocate Supreme Court
9. Mr. Tariq Mehmood, learned Senior Advocate Supreme Court submitted that the petitioner
was a Superintendent in Board of Revenue, Government of Sindh. The recommendation for his
appointment was made by the Member, Board of Revenue, Sindh in terms of Rule 5(4)(b) of the
West Pakistan (Executive Branch) Rules, 1964. A list was prepared in 2005 and the petitioner
was recommended for nomination, therefore, his case falls within the prescribed limit of the
quota. It was further submitted by the learned counsel that the petitioner passed many
departmental examinations which were not taken note of by this Court while passing the
impugned judgment against the petitioner.
Muhammad Jaffar Abbasi v. Province of Sindh and others by Mr. Tariq Mahmood, Senior
Advocate Supreme Court
10. Mr. Tariq Mehmood, the counsel for petitioner, submitted that the petitioner was appointed
as Deputy Secretary, Sindh Public Service Commission through competitive process. On 30-3-
1995, the post was upgraded to BS-18. On 1-9-1999, the petitioner was transferred to S&GAD
and absorbed in the Provincial Secretariat Service. The notification of his absorption was
cancelled. The petitioner challenged the cancellation of the notification before the Sindh Service
Tribunal. The Tribunal accepted his Appeal against which Sindh Government filed CPLA before
this honourable Court. The CPLA, however, was dismissed for non-prosecution and the
application for restoration of the CPLA was also dismissed. Resultantly, the order of the Tribunal
attained finality. However, the absorption of the petitioner has again been cancelled, pursuant
to the impugned judgment without taking note of the aforesaid facts.
11. He next contended that before absorption, the petitioner was a Civil Servant working in the
Sindh Public Service Commission, which is an attached department of the S&GAD Department,
and therefore, such absorption could not have been withdrawn in terms of the findings of the
impugned judgment.
12. The learned counsel, Raja M. Asghar Khan submitted that in the year 1993, the petitioner
was appointed as Project Director in BS-19 in the Sindh Small Industries Corporation through
advertisement. Subsequently, by notification dated 22-6-2000, he was declared surplus. On 30-
9-2005, he was absorbed in Provincial Secretariat Service (PSS) under Rule 9A of the Sindh Civil
Servants (Appointment, Promotion and Transfer) Rules, 1973. The learned counsel contended
that the absorption of the petitioner in P.S.S. in the same scale was made after observing all the
codal formalities; therefore, his appointment by absorption was valid.
Syed Abid Ali Shah (Retired) v. Farooq Azam Memon etc. by Mr. Abadul Hussnain,
Advocate Supreme Court
13. The learned counsel submitted that in 1976 the petitioner was appointed as Management
Trainee in the Board of Management, Sindh for nationalized Ghee Industries. On 16-8-1997, he
was appointed Managing Director at Maqbool Co. Ltd. when the Sindh Government
requisitioned his services. On 24-10-1997, the petitioner was sent on deputation for 3 years to
the Ministry of Industries and Production. On 15-11-1997, he was appointed Cane Commissioner
in BS-19. Then on 5-4-1998, he was transferred as DG, Bureau of Supply and Prices, Sindh.
Subsequently, on 15-11-1998, he was repatriated to Ghee Corp. and on 14-1-1999, his services
were placed at the disposal of Population Welfare Department (PWD). On 18-1-1999, he was
appointed as Additional Secretary, PWD, and on 9-8-1999, he was absorbed in PWD in relaxation
of rules. Then, on 30-9-1999, Ghee Corp. relieved him but on 18-12-1999, the Government
issued a notification for repatriation of the petitioner. However, on 21-12-1999, the Secretary of
Sindh Government informed that the petitioner has been absorbed, therefore, he cannot be
repatriated. By notification, dated 18-1-2013, the petitioner was absorbed in PSS.
14. The learned counsel contended that, in pursuance of the impugned judgment, he was de-
notified on 2-7-2013 and repatriated to Ghee Corporation though he had been merged in Sindh
Government in PSS cadre and Ghee Corporation had become defunct. The appellant retired on
attaining the age of superannuation, on 1-6-2014, one year after de-notification.
C.R.P. No. 393 of 2013
15. Mr. Abdul Rahim Bhatti, the learned Advocate Supreme Court, contended that the petitioner
was initially appointed as Assistant Director in Agriculture Department in BS-17 in 1989 through
Sindh Public Service Commission. Later, his services were requisitioned by the Environment
Department, Government of Sindh for a period of two years in the public interest. A summary
was moved for his transfer and, consequently, he was appointed in the Environment
Department. On 13-10-2005, he was promoted as Deputy Director in BS-18 through Provincial
Selection Board and was granted seniority. The petitioner was not a party to the proceedings
either in the High Court of Sindh or before this Court. He was repatriated to his parent
department without considering that the petitioner fulfilled all pre-requisites of his appointment
in the Environment Department, as provided under Rule 9(1) of the Rules of 1974. The learned
counsel submitted that petitioner was validly appointed by transfer under Rule 9(1), and not
under Rule 9-A.
16. He further contended that the word 'person' used in Rule 9(1), clearly manifests the
intention of the legislature that there is no bar to the appointment of the petitioner by transfer
under the A.P.T. Rules and in the other three Provinces and the Federation such transfers are
ordered in routine. He next argued that the expression 'person' used in the Rule 9(1) does not
mean Civil Servant only and includes a 'Government Servant', who may not be a Civil Servant.
Imdad Memon and others v. Province of Sindh and others by Mr. Hamid Khan, Senior
Advocate Supreme Court
17. Mr. Hamid Khan, learned counsel for the petitioners, contended that none of the petitioners
was party to the proceedings; therefore, the Court could not have passed an order affecting
their rights. He submitted that neither the High Court nor this Court (under Article 199 and
Article 184(3) respectively) had the jurisdiction to examine the issue pertaining to the terms and
conditions of service of a Civil Servant. The exercise of jurisdiction is barred under Article 212 of
the Constitution. The issue of absorption is a matter relating to the terms and conditions of
service, to be determined under the Civil Servants Act and the Rules framed thereunder. He
submitted that a number of Petitions were filed by Civil Servants absorbed in the Secretariat
Group in the High Court of Sindh, in ignorance of the fact that remedy was available to them
before the Sindh Service Tribunal. Therefore, the Petitions were barred under Article 212 of the
Constitution. The learned counsel while relying upon the case reported in Superintending
Engineer Highways Circle Multan v. Muhammad Khurshid (2003 SCMR 1241), submitted that the
matter of jurisdiction has not been dealt with in depth. He contended that Rules 9(1) and 9-A of
the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provide two modes
of appointment by transfer and both these modes are recognized by law.
18. The learned counsel submitted that Articles 240, 241 and 242 of the Constitution deal with
the civil structure and Article 212 provides remedy to a Civil Servant. These Articles do not relate
to fundamental rights. It has to be assessed in light of the aforementioned Articles whether the
Supreme Court can adjudicate upon the issue relatable to the terms and conditions of service
under Article 184(3). The learned Counsel contended that the Court has to draw a distinction
between Article 184(3) and Article 212 while giving the findings. He contended that Article 240
empowers the Provincial Legislature to legislate laws relating to the terms and conditions of
service of Civil Servants.
19. He next contended that in order to invoke the jurisdiction of this Court under Article 184(3),
the expression 'subject to the Constitution' has to be given narrow meaning, as referred to in
the Article 275. The learned counsel submitted that Civil Servants do not have fundamental
rights to invoke jurisdiction of this Court under Article 184(3) of the Constitution. According to
the learned counsel, benefit of Articles 9 and 25 of the Constitution cannot be extended to the
Civil Servants.
Ali Azhar Khan Baloch v. Province of Sindh etc. by Barrister Farough Naseem, Advocate
Supreme Court
20. The learned counsel submitted that the petitioner was employed as Deputy Manager at
Pakistan Steel Mills (PSM), which works under the control of Ministry of Production. On 16-9-
1992, upon the directive of the then Chief Minister, his services were placed at the disposal of
the Government of Sindh. For two years, he performed duties at various departments in the
Government of Sindh, e.g. on 6-3-1993, he was posted as Project Director, Lines Area,
Redevelopment Project KDA in BS-18. Finally, on 25-7-1994, permission was granted for his
absorption by the Establishment Division into the Government of Sindh. On 28-5-1994, the
petitioner was finally absorbed as Deputy Secretary in the Sindh Secretariat (PSS) and was
placed at the bottom of the seniority list. His lien with the PSM was terminated in 1994. He
earned promotions from time to time and finally he was promoted as Secretary (BS-21) in the
Sindh Government, by Notification dated 28-9-2012. By notification dated 25-4-2013, issued by
the Cabinet Secretariat, Establishment Division, Government of Pakistan, he was appointed by
transfer as Senior Joint Secretary (BS-21) in Secretariat Group and his services were placed at
the disposal of the Wafaqi Mohtasib for his further posting. He is now posted as Director
General of the Wafaqi Muhtasib.
21. The learned counsel for the petitioner contended that the cut off date for the application of
the impugned decision was held as 1994, therefore, his case was not covered by the impugned
judgment. The learned counsel submitted that the cut off date of 1994 is not backed by any
standard. The date given in the litigation in 1996 (in which the petitioner's case was decided)
would be more suitable, which is 22-3-1995. The Counsel contended that the date of 1994
seems to be arbitrarily fixed. The learned counsel cited the case Province of Punjab thr.
Secretary C&W Department and others v. Ibrar Younas Butt (2004 SCMR 67) in support of his
submission.
22. The learned counsel then referred to Rule 5 of Framework of Rules and Procedure applicable
to Secretariat, which provides that the appointment of Additional Secretary in the Federal
Secretariat can be made from public servants or officials from public or private enterprises. The
learned counsel submitted that if there is such an option available in the Federation, why it
should not be made available at the Provincial level. The petitioner was an employee of PSM,
which is a public enterprise. He further submitted that appointments cannot only be made
through CSS examinations, citing the Police Service as an example.
23. Alternatively, the counsel argued that the petitioner is qualified to be adjusted under Rule 5
and he should either be allowed to go to the High Court and this honourable Court may observe
that the impugned judgment will not come in his way or this Court may give necessary
directions to the Department.
24. The counsel next contended that in pursuance of Services of Pakistan (Redressal of Under-
Representation) Ordinance, 2012, on 1-12-2012, the petitioner was appointed by transfer as
Senior Joint Secretary in Secretariat Group in Federal Government on probation under section 6
of the Sindh Civil Servants Act, 1973. On 25-4-2013, the petitioner was absorbed by the Federal
Government and appointed at Wafaqi Muhtasib Secretariat. He submitted that the Federal
Government realized that some Provinces were underrepresented, including Sindh and
Balochistan. The Ordinance provided that officers could be taken from Provincial Civil Service
and inducted under the Ordinance. Counsel submitted that the petitioner's appointment is valid
as his services were placed in the Federal Government under the aforesaid Ordinance.
25. He next contended that the notification for the petitioner's absorption was issued prior to
the impugned judgment i.e on 12-6-2013. He submitted that if the judgment has to be
implemented retrospectively, the petitioner should be repatriated in PSM and granted
backdated seniority.
Mukhtar Ali etc. v. Province of Sindh etc. by Mr. M. Aqil Awan, Senior Advocate Supreme
Court
26. The learned counsel, appearing for three petitioners, Mukhtar Ali Pholijo, Muhammad
Saleem Jokhio and Abdul Rashid, submitted that the persons against whom this judgment is
being applied were not Civil Servants either before or after their absorption; they were just
transferred from one cadre to another.
27. The counsel submitted that Mukhtar Ali was appointed by Selection Board as a Medical
Officer in BS-17 in Sindh Employee Social Security Institution (SESSI). By notification, dated 31-1-
1996, he was absorbed in BS-17 in Sindh Council Service, Medical Branch. Before the impugned
judgment was passed, the petitioner was Administrator in District Municipal Corporation, Malir
in Executive Cadre.
28. The second petitioner, Muhammad Saleem, was an officer in City District Government
Karachi in BS-18, Administrative cadre. The Counsel submitted that the petitioner was employed
in the same department but he was absorbed in another branch. The Counsel submitted that
the services of the employees of KMC are regulated by the Sindh Local Government Ordinance
1979, whereas the services of the employees of the Councils are governed by the Sindh Councils
Unified Grades Service Rules 1982.
29. The third petitioner Abdul Rashid was appointed as Assistant Director, KMC in BS 16 on 21-3-
1996. On 12-4-2003, he was promoted to BS-17 and on 19-4-2007, he was subsequently
promoted to BS-18. He was employed as an officer in City District Council; the nomenclature
kept changing according to the prevalent laws but, basically, he was an employee of the
Municipal Corporation. On 12-2-2013, the petitioner was absorbed in Sindh Councils Service and
promoted to BS-19 on 12-2-2013.
30. The counsel referred to Rule 12(5) of the Sindh Councils Unified Grade Service Rules, 1982,
which provides for appointment by transfer. The learned counsel contended that Mukhtar Ali's
appointment was not challenged but he had been repatriated to his parent office pursuant to
the impugned judgment, which does not relate to non-Civil Servants per se. The impugned
judgment was passed on 12-6-2013 and he was repatriated on 2-7-2013. The learned Counsel
contended that since absorption has been declared illegal by the impugned judgment, the
petitioner, an officer of BS-19, has been repatriated to BS-17.
31. The learned counsel submitted that the impugned judgment of this Court has curtailed a
prevalent practice, which is permissible under the law. The learned counsel contended that this
Court needs to lay down the modalities of implementation and application of the impugned
judgment. The modalities regarding deputation and absorption and the process of repatriation
after illegal absorption should also be laid down. He contended that if an officer has been
wrongly absorbed, a show cause notice should be issued, the grounds of repatriation should be
mentioned and speaking order should be passed, which is justiciable.
32. The learned counsel submitted that the impugned judgment does not apply to non-Civil
Servants as they were not party to the original proceedings and no counsel appeared on their
behalf. He cited the cases of Fazal Ahmed Samito v. Province of Sindh (2010 PLC (C.S.) 215) and
Zulfiqar Ali Domki v. Province of Sindh (2012 PLC (C.S.) 1176) and argued that KMC/Council
employees are not Civil Servants. He further submitted that Rule 12(5) of the Rules permits
appointment by transfer.
33. The learned counsel submitted that, firstly, the judgment should be prospective, particularly,
when punitive consequences flow from its application. Secondly, he contended, that the
judgment is against the principles of natural justice; the petitioners were not party to the
proceedings and they were not heard. Thirdly, the impugned judgment nullified all absorptions
since 1994 even though all the absorptions were not challenged. Furthermore, past and closed
transactions under the impugned legislations cannot be held to be unlawful. Fourthly, he
contended that the law of deputation says that transfer should be made to a post in the same
grade. Similarly, repatriation should also be made in the same grade to the parent department.
Lastly, he submitted that the High Court should adjudicate on the matter whether a case is
covered by the impugned judgment or otherwise.
34. Mr. Abdul Rahim Bhatti, Advocate Supreme Court, argued that on 27-7-1998, the petitioner
was initially appointed as Assistant Director (BS-17) in the I.S.I. by the Federal Public Service
Commission (FPSC), through competitive process. Subsequently, the F.P.S.C. advertised posts of
Deputy Director (BS-18) in the Intelligence Bureau. The petitioner secured first position in the
test and on 15-10-2005, he was appointed as Deputy Director in the I.B. In both organizations
i.e. the I.S.I and the I.B, the petitioner had undergone specialized training courses, which
includes surveillance, interrogation and investigation. On 25-7-2009, initially his services were
placed at the disposal of Government of Sindh on deputation basis for his posting in BS-18, as he
belongs to Sindh Rural. Later on, through notification, dated 29-6-2012, (placed at page 234 of
P.B.), he was appointed as Superintendent of Police (BS-18) by way of appointment by transfer
and he severed all connections from the I.B.
35. The learned counsel stated that the petitioner was not a party to the proceedings in which
the impugned judgment has been passed. He further contended that as far as his qualification,
specialized courses and length of service are concerned, they are in conformity with the Rules.
He was not lacking any requirement. He then referred to Rule 3(2) of the Sindh Civil Servants
A.P.T Rules. He contended that there is no bar against appointment as S.P. and the petitioner
met all the requirements provided in Rule 3(2) of the Rules. He referred to Serial No.9 of the
Schedule to the Rules where the post of S.P. is mentioned.
36. The learned counsel argued that the petitioner joined the Special Branch of the Sindh Police
and he fulfills all the conditions laid down for the Special Branch. He had undergone all the
training courses in I.S.I. and I.B.
37. He submitted that the provision of lateral entry is available in all the occupational groups
and it is for the department to send him for training if the petitioner lacks in some area.
38. He then referred to Rule 7(2) of the APT Rules and stated that the case of absorption of the
petitioner was duly examined by the appropriate Selection Board and was recommended by the
two I.G.P's. and the Intelligence Bureau. Then the matter was referred to the S&GAD where it
was further examined and a formal summary was moved to the Chief Minister who approved it
and then notification of absorption of the petitioner was issued in conformity with the Rules.
39. He submitted that there are cases in which officers from FIA were inducted in the Police and
the Courts held their induction to be lawful. He submitted that if it was not permissible then
there was no need to mention the post of the S.P. at S.No.9 of the Schedule to the Rules.
40. The learned counsel contended that the petitioner was governed by the Sindh Civil Servants
Act, 1973 and he was originally a Civil Servant in the I.B. and the I.S.I. and his services were
placed at the disposal of the Sindh Government.
41. In support of his submissions he referred to the cases of 2004 SCMR 164 and 1993 SCMR 982
to state that even absorption of employees of autonomous bodies in the Government
Department was held to be lawful. He then referred to the case of 2010 PLC (C.S.) 1415 and
states that in this case the person who had not even received specialized police training, yet his
appointment was held to be lawful. He then submitted that even if absorption or appointment
by transfer is irregular, the department or the functionaries are held responsible and not the
individuals. In support of his submissions he referred to the cases of 2013 SCMR 281, 1996
SCMR 413, 1996 SCMR 1350, 2006 SCMR 678 and 2002 SCMR 1034. He further contended that
the impugned judgment would be prospective and not retrospective. In support of his
contention he referred to the cases of 2009 SCMR 1169 and 2013 SCMR 34. He further
contended that after the judgment, the petitioner was repatriated to the I.B., which refused to
take his services back under the pretext that his lien was terminated when he was
appointed/absorbed in the Sindh Police. He submitted that the case of the petitioner is that of
hardship as he is not even drawing his salary from anywhere.
Imran Hussain Jaffri v. Farooq Azam Memon and others by Mr. Shabbir Ahmed Awan,
Advocate Supreme Court
42. The learned counsel, Mr. Shabbir Ahmed Awan, argued that on 12-7-2010, the petitioner
was appointed as System Analyst (BS-18) in the Criminal Prosecution Branch through the Sindh
Public Service Commission. On 10-9-2011, he was declared surplus and absorbed in the
Provincial Secretariat Group.
43. The learned counsel referred to Rule 9 of the A.P.T. Rules and argued that any person from
any department can be appointed in PSS, who possesses the matching qualifications. The
prescribed qualification for induction in PSS is merely graduation and the petitioner has done
M.Sc. in I.T. He submitted that the petitioner was validly absorbed in PSS under Rule 9 of the
Rules. He contended that the petitioner was not party to the main Petition in which the
impugned judgment has been passed and the petitioner has been condemned unheard.
Jasoo Ram v. Nasim ul Ghani Sahto etc. by Mr. Abdur Rehman Siddiqui, Advocate
Supreme Court
44. It is contended by Mr. Abdur Rehman Siddiqui, counsel for the petitioner that he will adopt
the arguments of Mr. Abdul Rahim Bhatti, Advocate Supreme Court on legal side. He contended
that the petitioner was posted as Deputy Director (BS-18) in Minority Affairs Department,
Government of Sindh and was transfered and absorbed in BS-18 in ex-PCS cadre on 12-3-2013
and, subsequently, was posted as Deputy Secretary in Law Department on 3-4-2013. He
contended that the Sindh Government in exercise of powers under Rule 9(1) of the APT Rules
was competent to order absorption of the petitioner. Pursuant to the judgment impugned in
these proceedings, the petitioner was de-notified and was ordered to be repatriated to his
parent department.
Dost Ali Baloch v. Province of Sindh etc. by Dr. Farough Naseem, Advocate Supreme
Court
45. The learned counsel, Barrister Farough Naseem submitted that the petitioner was not party
to the original proceedings. On 20-7-1986, he was inducted as Deputy Assistant Director in IB
through the competitive examination in BS-17. On 27-12-1993, Special Branch of Sindh Police
requisitioned the services of the petitioner on deputation basis for a period of three years. By
notification, dated 7-5-1994, the I.B. relieved him of his duties to join the Special Branch of the
Sindh Police as DSP. At times, the Sindh Police refused to repatriate the petitioner to the I.B. due
to law and order situation in the Province. In the meanwhile, the petitioner was promoted on 2-
2-1997 in BS-18. In the intervening period, in 1993, the petitioner passed the CSS examination,
and was recommended to be appointed in the Office Management Group (OMG). The petitioner
made an application to the Sindh Police to relieve him so that he could join the Civil Services
Academy, but the Sindh Police refused to relieve him. The petitioner was required to report to
the Civil Services Academy by 15-12-1994, but, due to refusal of the Sindh Government, he
could not take up his appointment in the OMG. According to the learned counsel, the petitioner
kept on insisting for repatriation since 1995 but the Sindh Government has declined. The
petitioner has performed exceptionally well and, apart from performing his duties, he was
organizing technical upgradation, etc. and his retention was required to maintain the continuity
and consistency of the department. On 14-10-1998, a notification was issued with the approval
of the competent authority, permanently absorbing the petitioner as SP Political Special Branch,
Sindh Police in relaxation of rules.
46. The learned counsel referred to Rule 4 and Rule 10 of Sindh Civil Servants (APT) Rules, 1974
and Rule 4(3) of Sindh Public Service Commission Functions Rules, 1990 and contended that an
officer can be appointed without competitive examination by the order of the Chief Minister.
The learned counsel submitted that all pubic powers are to be exercised fairly, justly and
reasonably in furtherance of public interest. The Chief Minister cannot blindly do anything, but
in exceptional cases like the present one, where the Government of Sindh was instrumental in
preventing the petitioner from joining the Civil Service the petitioner who was highly qualified
and was retained in Sindh Government to maintain law and order in Karachi, the competent
authority was justified under Rule 4(3) to absorb the petitioner in Sindh Government.
47. The learned counsel stated that after rendering 20 years of service with the Sindh Police, the
Sindh Government has repatriated the petitioner when his lien had been terminated. He lost an
opportunity to be part of the OMG due to non-relieving by the Sindh Government. He is an
officer of BS-20, currently holding no post, and his lien in IB has also been terminated. Counsel
then referred to the case of Muhammad Malik v. Province of Sindh (2011 PLC (C.S.) 1456) while
submitting that the petitioner cannot be compared to PSP because he is in a separate cadre, i.e.
Sindh Police. The learned counsel contended that the petitioner is wrongly de-notified.
Muhammad Riaz etc. v. Province of Sindh etc. by Mr. M. Shoaib Shaheen, Advocate
Supreme Court
48. Mr. M. Shoaib Shaheen, learned Advocate Supreme Court submitted that the petitioner was
a regular employee of the Anti-Narcotics Forces (ANF) since 1989 and was working as Assistant
Director in BS-17 when on 13-5-2003, he was transferred and posted on deputation as DSP in
the Sindh Police. The petitioner was absorbed by notification, dated 26-2-2008, and promoted
twice. There was a dispute regarding his seniority which was resolved by the Sindh Service
Tribunal and the High Court of Sindh, approving the petitioner's backdated seniority and that
matter attained finality. The learned Counsel in support of his contention has relied upon the
case of Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). The
learned counsel submitted that the petitioner's transfer from ANF to Police under Rules 3(2) and
9(1) of APT Rules, 1974, was justifiable.
49. The learned counsel contended that the impugned judgment declares that absorption can
only be made under Rule 9-A, however, absorption can also be made under Rule 9(1). The
counsel further stated that the petitioner's transfer has not been validated under the legislative
instruments that have been struck down. He submitted that the impugned judgment does not
clarify exactly which absorptions are illegal and that even legal appointees have been affected
by the impugned judgment, and this honourable Court must review this judgment.
50. Mr. Hamid Khan, learned Senior Advocate Supreme Court, submitted that the petitioners
were validly appointed by transfer and absorbed. He submitted that Rules 9(1) provides for
appointment by transfer, and by promotion. By the impugned judgment it has been held that an
employee can only be absorbed under Rule 9-A but not under Rule 9(1). He submitted that Rule
9(1), has to be read with Rule 7(2) and (3) of the Rules. According to the learned Counsel the
word 'Person' used in Rule 9(1) would include any person, and competent authority is conferred
powers to appoint him by transfer which includes absorption in that post. The learned counsel
further submitted that lateral movement between the departments is permissible by the Rules
of 1974.
51. The petitioner, appearing in person, argued that in the year 1996, she was appointed as
Forest Ranger (BS-16) in the Forest Department on the recommendations of the Punjab Public
Service Commission. She was married in 1996 and her husband was also a Forest Ranger in the
Sindh Forest Department, therefore, she applied for inter-provincial transfer to the Forest
Department, Government of Sindh, on the basis of Wedlock Policy. On 11-2-1997, she was
absorbed in the Sindh Forest Department as Forest Officer (BS-16). She submitted that during
the interregnum, she also qualified the Sindh Public Service Commission examination for
appointment to the post of Assistant Registrar (BS-17) in the Co-operative Department,
Government of Sindh, and she worked as such for some time, but due to future prospects she
came back to the Forest Department. She contended that at the time of passing of the
impugned judgment, she was working as Divisional Forest Officer, Hyderabad, when she was
ordered to be repatriated to the Forest Department, Government of Punjab. She contended that
her lien in the Government of the Punjab had been terminated, therefore, the Government of
Punjab had refused to take her services back. She, therefore, requested that her notification of
repatriation may be ordered to be withdrawn.
52. The learned counsel argued that, on 11-7-2006, the petitioner was appointed as Assistant
Director (Investigation) in the NAB. On 2-4-2008, his services were requisitioned by the S&GAD,
Sindh, for posting in Government of Sindh, on deputation basis; whereafter, on 10-5-2008, he
was absorbed/inducted in the Sindh Police as DSP (BS-17). The learned counsel submitted that
Rule 9(1) of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 confers
ample powers upon the competent authority to appoint a person by way of transfer and the
procedure provided for appointment in these Rules was duly followed while making
appointment of the petitioner. He further contended that National Accountability Bureau is a
subordinate office of the Ministry of Law and the petitioner was a Civil Servant.
53. Mr. Khurram Mumtaz Hashmi, learned Advocate Supreme Court, for the petitioners has
contended that petitioner in C.R.P. No.402 of 2013, the petitioner was appointed as Sub-
Engineer (BS-11) in Public Health Engineering Department, Government of Sindh, on 9-8-1984.
On 29-9-1987, he was appointed as Assistant Engineer in Public Health Department and was
again promoted as Executive Engineer (BS-18) on 6-10-1999. On 14-5-2005, the Government of
Sindh S&GAD Department requisitioned the services of the petitioner on deputation basis for an
initial period of 2 years, for his posting in Works and Services Department. On 26-5-2007, the
period of deputation was extended for another 2 years by the S&GAD Department, Government
of Sindh. Consequently, on 8-10-2007, he was absorbed as executive Engineer (BS-18) in the
Works and Service Department, Government of Sindh and his name was placed at the bottom of
seniority list of Executive Engineers of the Department. The learned Counsel submitted that the
petitioner was transferred from one non-cadre to the other non-cadre post, therefore, his case
is not covered by the judgment.
54. The learned counsel submitted that the position of the petitioner in C.R.P No.403 of 2013
was similar, as on 12-9-1994, he was appointed as Executive Engineer (BS-17) in Water and
Sewerage Board, Karachi (KWSB). On 25-10-1994, the appointment of the petitioner was
regularized and on 27-10-2008, he was promoted as Executive Engineer (BS-18) in the KWSB.
Consequently, on 18-8-2008 he was absorbed as Executive Engineer (BS-18) in the Works and
Services Department, Government of Sindh. Lastly, he submitted that the impugned judgment is
not a judgment in rem but is a judgment in personam.
Saeed Ahmed Sheikh etc. v. Province of Sindh etc. by Mr. Muhammad Ibrahim Bhatti,
Advocate Supreme Court
55. The learned counsel contended that petitioner No.1 was initially appointed as Section Officer
in Provincial Secretariat Service (BS-17) on the recommendation of the Sindh Public Service
Commission. On 26-11-2010, he was promoted as Deputy Secretary and on 14-3-2013, the
notification of absorption of the petitioner in ex-PCS in BS-18 in exercise of powers of section 24
of the Sindh Civil Servants Act, 1973 was issued.
56. Petitioner No. 2 Gulshan Ahmad Sheikh was appointed vide notification, dated 29-10-1991
as Additional Private Secretary in Chief Minister Secretariat. In the intervening period, he was
appointed as Protocol Officer and on 26-3-2008, the post was upgraded from BS-17 to BS-18. On
14-3-2013, he was absorbed in ex-PCS by CM, Sindh in exercise of power under section 24.
57. The learned counsel contended that section 24 confers ample powers upon the competent
Authority to absorb/induct an officer from one cadre to another cadre. Therefore, absorption of
the petitioner in ex-PCS was validly made.
Zameer Ahmad Abbasi v. Province of Sindh etc. by Mr. Abdul Rahim Bhatti, Advocate
Supreme Court
58. The learned counsel contended that the petitioner was initially appointed as Assistant
Director (BS-17) in the National Accountability Bureau on the recommendations of the Federal
Public Service Commission. He received specialized training from the National Police Academy
Islamabad. The S&GAD Department Government of Sindh requisitioned the services of the
petitioner on deputation. Finally, on 29-2-2012, he was absorbed as DSP (BS-17) in Sindh Police
by the S&GAD Department. The learned counsel contended that the appointment of the
petitioner was made by transfer as per Rule 6(1) of the APT Rules. Therefore, his absorption in
the Sindh Police was valid. He further contended that as per Recruitment Rules for the post of
DSP, the post of DSP is a non-cadre post and the petitioner was absorbed against the same.
Ghulam Nabi Babar Jamali etc. v. Chief Secretary, Sindh by Mr. Adnan Iqbal Ch.
Advocate Supreme Court
59. Mr. Adnan Iqbal Ch, learned counsel for the petitioners submitted that the petitioners were
not party to the original proceedings. Petitioner No.1 is a Civil Diploma holder appointed initially
on 1-6-1984 as Sub-Engineer in BS-11 in the Irrigation Department. On 3-12-2003, he was
promoted to BS-16 after a delay of 8 years; he had passed his examinations and was entitled to
promotion in 1996. On 26-1-2004, he was promoted out of turn for 'gallantry' in performance of
his duties to BS-17 as Assistant Engineer.
60. The learned counsel submitted that on 22-8-1988, petitioner No.2 was appointed as Sub-
Engineer in BS-11 in the Irrigation Department. On 22-8-1994, he was promoted from BS-11 to
16 and on 6-10-2003, he received out of turn promotion to BS-17.
61. The learned counsel submitted that section 9-A of the Sindh Civil Servants Act, 1973 and
Rule 8B of the Sindh Civil Servants (APT) Rules, 1974 allow out of turn promotion and have not
been struck down by the impugned judgment. Therefore, the portion of the impugned judgment
that nullifies out of turn promotions needs to be revisited because the Rule that allows out of
turn promotion is still on the statute book.
62. The learned counsel submitted that section 9-A is applicable to all and is not confined to the
Police Personnel, so 'promotion for gallantry act' can be given to all Civil Servants. He submitted
that the word gallantry has been used and defined in the Decorations Act, 1975. It states
gallantry is a trait that could be exhibited by any Civil Servant regardless of opportunity
presented to him in the field. If the opportunity of exhibiting gallantry only arises in the Police
Department, it does not mean that other Civil Servants cannot display gallantry. He then
referred to the use of the word gallantry in Article 259 of the Constitution. The learned counsel
submitted that the portion of the impugned judgment that confines section 9A and Rule 8B to
the Police Force should be removed.
63. He next contended that the phrase 'beyond the call of duty' used in section 9-A should be
interpreted in a broader sense, so as to extend its benefit to all Civil Servants. He submitted that
a Civil Servant can be granted out of turn promotion by applying this principle and the case of
the petitioner falls within Rule 8B.
63. He further submitted that section 9-A was inserted in 2002, which prescribed mode for
granting out of turn reward and award by Rules framed in 2005. Rule 8B was introduced in 2005,
which provides for constitution of a committee to examine all out of turn promotions. Since the
impugned legislations have been declared illegal by the judgment under review, the learned
Counsel submitted that the decision of the High Court of Sindh is still in the field. The learned
Counsel further contended that out of turn promotion was declared unlawful in Nadeem Arif v.
I.-G. Police, Punjab, Lahore (2010 PLC (C.S.) 924). However, before this judgment in 2010, out of
turn promotions had been endorsed and approved in numerous judgments including Capt.
(Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar (PLD 1992 SC 184), Punjab Seed Corporation
v. Punjab Labor Appellate Tribunal (1996 SCMR 1946), Government of Punjab v. Raja
Muhammad Iqbal (1997 SCMR 1428), I.-G. Police Lahore v. Qayyum Nawaz Khan (1999 PLC (C.S.)
1381), Raja Shoukat Mehmood v. Azad Jammu and Kashmir Government (2003 PLC (C.S.) 424)
and I.-G. Police, Lahore v. Muhammad Iqbal (2007 SCMR 1864). The petitioners were promoted
out of turn in 2004; therefore Nadeem Arif's case (supra) does not apply to them since change in
enunciation of law is prospective and, therefore, their cases should be assessed under Rule 8B.
Hafiz Safdar Shekih v. Javed Ahmed etc. by Mr. Shabbir Ahmed Awan, Advocate
Supreme Court
66. The learned counsel, Mr. Shabbir Ahmed Awan, submitted that the petitioner was not a
party to the original proceedings. He is a Civil Engineer appointed as Assistant Engineer at Works
and Services Department, Government of Sindh in March, 1993. On 16-3-1995, he qualified
through Public Service Commission to be appointed as Assistant Executive Engineer (AEE) in BS-
17. In January 2006, his services were requisitioned by the Anti-Corruption Establishment (ACE)
as Technical Officer under the rules on deputation, and, on 10-3-2008, he was absorbed as AEE.
He was promoted to BS-18 in the Anti-Corruption Department. The contention of the learned
Counsel is that once the petitioner was appointed by transfer in Anti-Corruption Establishment
under Rule 9(1) he could not have been called back to his parent department.
67. The learned counsel Mr. Yawar Farooqui submitted that in 1993, the petitioner was
appointed in BS-17 in Local Govt. Department, Balochistan as Assistant Director. He was
promoted to BS-18. He contended that the petitioner's son was attacked and he spent two
months with his son at Agha Khan Hospital Karachi, where he underwent treatment. The
petitioner applied to the CM, Sindh for transfer on humanitarian grounds, and his transfer was
made under section 10 of Balochistan Civil Servants Act. On 3-9-2010, he was posted as Director
Food, Sindh by the CM in exercise of his powers under section 24 of the Sindh Civil Servants Act,
1972. He was then appointed as EDO Finance, Sindh and on 14-3-2013, was absorbed in ex-PCS
without going through any competitive process. The petitioner was repatriated to the
Balochistan Government in the wake of the impugned judgment; however, he has severed all
connections with the Balochistan Government, therefore, he could not be repatriated.
Syed Shakir Hussain v. Province of Sindh etc. by Mr. Rana Azam-ul-Hassan, Advocate
Supreme Court
68. The learned counsel Mr. Rana Azam ul Hassan submitted that petitioner was not party to the
proceedings. On 2-7-1995, he joined Jail Department as Assistant Superintendent Jail in BS-14
and on 15-11-2004, he was promoted to BS-16 as Deputy Superintendent with the approval of
the relevant authority under section 9-A. The learned counsel submitted that the petitioner was
promoted to BS-17 out of turn which promotion was reversed. The grievance of the petitioner is
that appointees of his batch, who were junior to him, have been promoted to BS-17 on regular
basis and he has been relegated to BS-16 in the wake of the impugned judgment. He submitted
that the petitioner should also be considered for promotion to BS-17 and his seniority be fixed
along with his other colleagues, who were appointed with him in the year 1995 in BS-14.
Dur Muhmmad Panhwar v. Province of Sindh by Mr. Irfan Qadir, Advocate Supreme
Court
69. The learned counsel Mr. Irfan Qadir submitted that the petitioner, who is qualified as M.A.-
LL.B., was appointed as Senior Auditor in Pakistan Military Accounts, Ministry of Defence,
Government of Pakistan in BS-11 on regular basis as a Civil Servant. He was then posted in the
office of the Controller Naval Accounts Karachi and the post was subsequently upgraded to BS-
14. On 7-11-2007, his services were requisitioned and placed at the disposal of Sindh
Government, and he was sent on deputation for 5 years. In 2010, his post was again upgraded
to BS-16. He was posted in Solicitors Department and was discharging similar duties as of his
parent department. He was allowed to work as Superintendent in Solicitors Department in BS-
16 till 6-11-2010. By order, dated 14-4-2012, the petitioner was permanently absorbed.
However, in pursuance of the impugned judgment, the petitioner's absorption was withdrawn
and he was repatriated to his parent department.
70. The learned counsel argued that there are specific Rules framed for this post in pursuance of
Rule 3(2) of the APT Rules which state that 30% of posts shall be for appointments by transfer.
Furthermore, the petitioner was transferred under Rule 9(1), which is still intact. Therefore, his
appointment was valid and lawful. The petitioner's appointment was not in violation of the rules
or the judgment but his repatriation from the Sindh Government was without notice. The
petitioner was placed at the bottom of the seniority list, did not receive any benefit under the
struck down provisions and he had not earned any out of turn promotion.
71. The learned counsel further submitted that the Court should not dwell on academic issues.
He next contended that this is not a public interest litigation and principles of justice have been
violated in the judgment under review as thousands of officers have been condemned unheard.
Therefore, the principle of audi alteram partem has been violated and the officers were denied
their fundamental rights of hearing, fair trial under Article 10A of the Constitution. The counsel
argued that the judgment is discriminatory and violates Article 25, as some officers were heard
while others who were not party were not heard.
72. The fact that all these petitions have been jumbled together is an error apparent on the face
of the record. The mess created by excessive use of suo motu powers should now be cleared
and these decisions should be reviewed. The counsel contended that the judgment is vague,
unclear and contains gross errors pertaining to the Constitution and laws, as under Article
184(3) of the Constitution, this Court cannot examine the questions relating to terms and
conditions of service. The proceedings are void ab initio because the judges of the honourable
Court were under a wrong impression of the law that the Judgment of the High Court of Sindh
was to apply in rem and not in personam. The Counsel referred to Articles 189 and 190 of the
Constitution and submitted that the judgment was to apply in personam and it must apply
prospectively, not retrospectively. When a principle of law is laid down, it applies prospectively.
The counsel referred to Pir Buksh's case PLD 1987 SC 145, in which writ petitions were decided
by the High Court against which the Government filed Appeals but in one case no Appeal was
filed. Therefore, it was decided that since his case was not before the Court, no adverse order
could be passed against him. Hence, his rights were taken away because he was not heard.
Therefore, the judgment under review will apply purely in personam and not in rem. The
counsel further submitted that the Supreme Court in fact implemented the judgment of the
High Court and this Court is not the forum for this.
73. The learned counsel contended that there are major inconsistencies within the judgment. He
submitted that in para. 116 of the judgment, it has been held that absorption is legal if an officer
is transferred to a post that requires matching qualifications, expertise and experience. But para.
175 declares all absorptions illegal. Furthermore, the judgment prohibits transfer of Civil
Servants to non-cadre posts, however, there is no law that prohibits transfer of a person against
a post held by a Civil Servant especially when the qualifications match. No embargo has been
placed on the legislature by the Constitution to include anybody within the ambit of Civil
Servant; Article 240 of the Constitution provides to the contrary. The Counsel submitted that
Rule 9(1) uses the term 'person', therefore it is not confined to any Civil Servant, government
servant or public servant only.
74. The learned counsel further submitted that the concept of absorption and lateral entry is not
alien to the country's jurisprudence. This is evident from Rule 8(1) of Civil Service of Pakistan
(Composition and Cadre) Rules 1954, Rule 8 of Trade and Commerce where people can be
appointed directly, Rule 7 of Customs, Rule 9 of Foreign Affairs, Rule 7 of Income Tax, Rule 8 of
Information, Rule 9(c) of OMG and Rule 7 of Police Group. Thousands of appointments will have
to be repatriated in the Federal Government and Punjab Government if absorptions are
declared illegal because law has to be applied equally. In para. 128, the impugned judgment
held that a deputationist should be a Government Servant, and there is no emphasis that it
should be Civil Servant specific. And, there is no law with such a requirement either. But it has
been held to the contrary in para. 129 and the judgment in Lal Khan's case (supra) being relied
upon is non -existent.
75. The learned counsel Mr. Muhammad Munir Paracha, Advocate Supreme Court submitted
that on 23-9-1998, petitioner No. 1, Tariq Mughal was appointed as Assistant Executive Engineer
(BS-17) on ad hoc basis for 6 months in Port Bin Qasim Authority. His post was regularized on
10-4-1991 w.e.f 6-8-1990. On 16-5-1993, he was sent on deputation for 3 years as Assistant
Executive Engineer, ZMC East and on 21-2-1994, he was absorbed in Sindh Council Unified
Grade Service in BS-17. On 2-7-2013, he was reverted in implementation of the impugned
judgment. The counsel contended that the judgment is violative of the Order XXVII-A, Rule 1 of
C.P.C. because no notice was issued to the Advocate General/Attorney General. This was
essential as the Court was examining the vires of legislation. The counsel relied upon the case of
Federation of Pakistan v. Aftab Ahmad Sherpao (PLD 1992 SC 723) in support of his contention.
He submitted that proceedings taken under Article 184(3) are barred under Article 212 of the
Constitution as the proceedings were relatable to the terms and conditions of the Civil Servants
and Article 184(3) is controlled by the Article 212 of the Constitution.
76. The counsel submitted that legislative instruments can be held ultra vires only on the
following 5 grounds; competence of the legislature to legislate such laws, inconsistency with
fundamental rights, violation of any provision of the Constitution, inconsistency with injunctions
of Quran and Sunnah (declared by the Federal Shariat Court and Shariat Appellate Bench of this
Court) and Federal Money Bill. None of the aforesaid grounds existed to reach such a
conclusion.
77. The learned counsel submitted that appointment can be made through promotion or by
direct transfer. He next contended that the definition of Civil Servant has been wrongly
interpreted. Everyone working in the affairs of the Province is a Civil Servant, not just those who
pass competitive examinations. The Court has the power to determine legislative intent, but it
cannot declare a law as bad law unless it is invalid. If the Court interprets law in a way that it is
against the intent of the legislature, the legislature can revalidate the law so that its true intent
is followed. The counsel submitted that if a judgment interprets law or a law is struck down due
to incompetency of Legislature, it can have retrospective effect. However, if a law is invalid
because it is inconsistent with fundamental rights, as is the case in the judgment under review,
the judgment must be prospective.
78. On 1-3-1990, petitioner No. 2 Muhammad Hanif Solangi was appointed as Assistant Security
Officer (BS-12). In 1994, the post was upgraded to BS-14. On 19-6-2004, he was promoted as
Security Officer in BS-16 and on 25-10-2008, he was appointed as Deputy Director Coordination.
This post was also upgraded on 19-5-2009. On 15-8-2012, he was assigned charge of Secretary,
SITE. Subsequently, he was appointed Deputy Director Admin and Land Management in SITE Ltd.
Karachi by promotion. He was appointed by transfer and on 22-10-2012, he was absorbed as
Deputy Secretary, in the PSS by transfer.
Inayatullah Qureshi v. Province of Sindh etc. by Mr. Shabbir Ahmed Awan, Advocate
Supreme Court
79. Mr. Shabbir Ahmed Awan, learned Advocate Supreme Court contended that the judgment is
not applicable to the petitioner. On 10-5-1987, he was appointed as Research Officer (BS-17) in
Government of Pakistan in Planning and Development Division. On 30-11-1989, his services
were requisitioned by Government of Sindh, P&D Division as Planning Officer in Project
Appraisal Section, P&D Division w.e.f 14-11-1989 on the recommendations of Sindh Public
Service Commission by notification, dated 21-10-1992. The post was advertised and on the
recommendations of Federal Public Service Commission, the petitioner was appointed as
Assistant Chief (BS-18) on 21-7-1997. He was then promoted and appointed as Deputy Chief in
BS-19 w.e.f 15-12-2003 and on 18-8-2004, he was sent on deputation. On 12-4-2008, he was
absorbed as Director, Planning and Development Department in Government of Sindh in BS-19,
in accordance with section 10A(2) of Sindh Civil Servants Act, 1973. The learned Counsel
contended that he was not a beneficiary of any of the Acts/Ordinances which had been declared
ultra vires. Therefore, the judgment does not apply to the petitioner. Furthermore, nobody had
the experience or qualification to be appointed to this post so the petitioner has not taken up
any other Officer's place. The Rules of Business of Sindh and the Federation are exactly the
same. Therefore, the petitioner was protected by the principle of locus poenitentiae. The
Counsel submitted that his lien has now been terminated and he is not posted anywhere.
Mir Hussain Ahmad Lehri v. Javed Ahmed and others by Mr. Shabbir Ahmed Awan,
Advocate Supreme Court
80. The learned counsel, Mr. Shabbir Ahmed Awan, contended that on 28-3-1991, the petitioner
was appointed DSP through the Balochistan Public Service Commission in BS-17. His services
were requisitioned by the Sindh Government on deputation and subsequently, on 27-10-2003,
he was permanently absorbed in Sindh Police as DSP. On 14-1-2005, he was promoted on the
recommendations of the Selection Board as Superintendent of Police (BS-18). In accordance
with the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, he was
encadered as Superintendent of Police in Police Service of Pakistan. As a result of the judgment
under review, the petitioner has been repatriated to Balochistan Police as DSP.
81. The petitioner appeared in person and submitted that in 1990, he was appointed as Sub-
Inspector in the Intelligence Bureau. He was appointed as Sub-Inspector in Sindh Police in 1994
through proper procedure with NOC. Subsequently, he was promoted as Inspector in the Sindh
Police and posted at Nawabshah, Police Lines. In pursuance of the impugned judgment, he has
been repatriated to the IB, which department has refused to take him back after 26 years as his
lien was terminated and now he is nowhere.
Shiraz Asghar Sheikh v. Dr. Nasimul Ghani Sahto etc. by Mr. Abdul Rahim Bhatti,
Advocate Supreme Court
82. The learned counsel, Mr. Abdul Rahim Bhatti, contended that on 21-4-2007, the petitioner
was appointed to PEMRA on regular basis as Assistant-General Manager (BS-17). He was
working as Field Enforcement Officer at Sukkur. On 19-5-2008, his services were requisitioned
and on 15-8-2008, NOC was issued by PEMRA to join Sindh Government. On 20-8-2008, Services
and General Administration Department (S&GAD) placed his services at the disposal of
Provincial Police Services. On 17-1-2009, he was sent for training to National Police Academy,
Islamabad. The counsel contended that the petitioner was not given backdated seniority. He
completed his training from Police Academy and was relieved on 15-7-2010. He was appointed
as DSP (BS-17) in the Sindh Police. The learned counsel submitted that the petitioner was not
party to the proceedings; he was condemned unheard and the principle of audi alteram partem
was violated.
83. The learned counsel contended that Rule 9(1) of the APT Rules is for regular appointees. The
petitioner's appointment was made under Rule 3(2) and all requirements of the rules were
satisfied. He submitted that the requirement of passing the exam of the Public Service
Commission is for initial appointment and not for appointment by transfer. Furthermore, the
petitioner was required to conclude and complete the training before his appointment as DSP
and he has competed the training. The counsel further contended that the petitioner's lien with
PEMRA has been terminated.
Khurram Warris v. Chief Secretary Sindh by Mr. Irfan Qadir, Advocate Supreme Court
84. The learned counsel, Mr. Irfan Qadir, submitted that the petitioner was granted out of turn
promotion for gallantry beyond the call of duty by risking his life. He displayed extraordinary
bravery. However, because of the impugned judgment, these promotions have also been
declared illegal. The Counsel contended that there are inconsistencies between para. 146 and
para. 148 of the impugned judgment. These matters of out of turn promotions were supposed
to be scrutinized by a committee according to HC judgment but such committee was never
constituted.
Criminal O.P No. 121 of 2013 (along with C.R.P. 193 of 2013)
Muhammad Shamil Hingorjo v. Muhammad Ejaz Chaudhry, Chief Secretary Sindh and
others
Munir Ahmed Phulpoto v. Province of Sindh by Mr. Z.K. Jatoi, Advocate Supreme Court
86. The counsel submitted that the petitioner was not a party to these proceedings and he has
only been granted one out of turn promotion for gallantry under section 9-A. On 13-3-1990, he
was appointed ASI. In 1998, he was promoted as Inspector with his batchmates. His gallantry
acts were recognized in a meeting on 20-1-2009, referred to on pg. 150 of the paper book, as a
result of which he was promoted as DSP.
Dr. Atta Muhammad Panhwar v. Province of Sindh etc. by Dr. Farough Naseem,
Advocate Supreme Court
87. The learned counsel, Mr. Farough Naseem, filed documents on behalf of the petitioner. The
petitioner had passed the CSS examination in 1990 and was allocated Information Group. While
in service, a post was advertised on 14-9-2008 in Public Sector Organization in Alternative
Energy Development Board (AEDB), Federal Government. The petitioner made an application
and he was offered an appointment, by notification, dated 17-12-2008, which he accepted. It
was a fresh appointment and he was appointed as Secretary to the Board in BS-20. He had made
no application but the Federal Government placed him his services at the disposal of the Sindh
Government by order, dated 10-7-2010. His services were requisitioned because they required
officers having technical knowledge in information sector. On 9-8-2010, he was appointed as
Special Secretary at CM Secretariat. He was given a charge to be posted as DG, Malir
Development Authority on 16-7-2011. Then, by notification, dated 19-8-2011, he was appointed
DG, MDA in the Local Government under section 6 of Malir Development Authority Act, 1994.
He was not absorbed but appointed afresh. Counsel submitted that the post was not advertised;
the procedure of appointment is silent. (MDA is a statutory body that falls under the Local
Government).
88. The petitioner was absorbed in PCS cadre but now that appointment has been reversed as a
result of the judgment under review. After the judgment was pronounced on 12-6-2013, in
order, dated 2-7-2013, Dr. Atta's parent department was listed as MDA/Federal Environmental
Board so confusion was created. However, the last post to which he was appointed was DG
MDA. Federal Environmental Board has terminated his lien. He should be appointed in MDA in
non-cadre post and be allowed to remain in Local Government.
89. The learned counsel submitted that an order was passed in the judgment under review that
those on deputation should be reverted but those absorbed were reverted as well. The counsel
submitted that the petitioner is not asking to be appointed as DG, but he should be appointed in
MDA, because his lien with the Information Group has been terminated.
89. The counsel submitted that the judgment under review held that absorption can only be
made under Rule 9-A. Secondly, he submitted that the effect of the judgment is such that the
power available to the CM, which must be exercised justly, equitably and reasonably, under
section 24 of the Act of 1973, has been taken away. The Counsel argued that the honourable
Court may lay down parameters of exercise of such powers. Appointments made under this
section may then be subjected to judicial review, but this power cannot be taken away in its
entirety. The power should be exercised in terms of the judgment given in Ehsanullah's case
(1993 PLC (C.S.) 937). The Counsel submitted that pronouncement on the power under section
24 should be revisited and the Court should also revisit the finding that absorption can only be
made under Rule 9-A, keeping in mind Rule 4(3) of the Sindh Public Service Commission
Function Rules.
91. The petitioner appeared in person and submitted that on 4-8-1987, he was appointed in KDA
as Assistant Engineer on temporary basis. He passed the exam and received training. On 27-4-
1989, the petitioner was sent on mutual transfer to Public Health Engineering and he was
posted in Hyderabad. He submitted that he has been working for 25 years but he has not been
promoted. He has been reverted as a result of the judgment. He joined KMC, as KDA has been
dissolved but they reverted him as well.
Qamaruddin Sheikh v. Secretary Local Govt. Sindh etc. by Mr. M. Shoaib Shaheen,
Advocate Supreme Court
92. The learned counsel, Mr. Shoaib Shaheen, contended that on 13-9-1989, the petitioner was
initially appointed as Land Officer in BS-16 in Taluqa Municipal Corporation, Hyderabad.
Subsequently, on 1-12-1991 he was promoted as Deputy Management Land Officer to BS-17. On
24-8-2002, he was promoted as Taluqa Officer Regulation (BS-18). Under Sindh Local
Government Ordinance 2001, Hyderabad MC was abolished. Local Government Board was
constituted under the Ordinance and the petitioner was posted as TMO, Orangi Town on 8-12-
2003 by the Board. He was absorbed in BS-18 in Sindh Council Unified Grade Service with the
approval of the CM, Sindh under Rule 9(1). The counsel contended that the petitioner was not a
Civil Servant either before absorption or afterwards, therefore the judgment does not apply to
him. Employees of the Councils are not Civil Servants. The Acts and the Ordinances that have
been struck down by the judgment under review were relatable to Civil Servants and cadre
posts. The matter involving non-Civil Servants and non-cadre posts was not before the
honourable Court and the findings in the judgment will not apply to them.
on behalf of petitioner No. 6 Abu Bakr by Mr. M. Shoaib Shaheen, Advocate Supreme
Court (to Check)
93. The learned counsel submitted that the petitioner was held to be nominated in excess of the
quota. The judgment under review provided that only officers up to Serial No. 12 of the list were
validly nominated. The petitioner was at No. 13 on the list. He submitted that meanwhile, two
officers placed above him on the list have been promoted. The learned counsel submitted that
the process of nomination has not been declared invalid and only the nominations in excess of
the quota have been so declared, therefore, the petitioner should have been nominated now
when two persons above him have been nominated and promoted.
94. On 28-7-1987, the petitioner was appointed in KDA as Assistant Engineer (BS-17) on
permanent basis. On 26-2-1995, he was transferred to C&W Department under mutual transfer
with Muhammad Amir (Assistant Engineer at C&W) in BS-17. He is still serving in BS-17. The
petitioner was repatriated to the Local Government Department on 2-7-2013 and was placed at
the bottom of seniority list. However, Muhammad Amir, who was mutually transferred with
him, has not been repatriated.
Saleem Ullah v. Province of Sindh thr. Secy. Services, General Administration etc.
95. The learned counsel Tariq Mehmood contended that the petitioner Saleem Ullah first went
to the High Court in respect of his grievance. On 25-10-1994, he was appointed as Assistant
Executive Engineer (AEE) in BS-17 in Karachi Water and Sewage Board (KWSB) as a result of due
process. In the same year, Muhammad Harris was appointed in C&W Department and was
posted at Larkana as AEE. Harris moved an application to be adjusted in Karachi, as he was not
comfortable in Larkana. Therefore, on 10-1-1995, there was a mutual transfer of Harris and
Saleem Ullah. They were both appointed in the same grade and the same post and they had the
same qualification. Chief Secretary approved the transfer in relaxation of rules on 11-7-1995 as
both Harris and Saleem Ullah were absorbed. The petitioner passed the promotion exams but
he is still serving in BS-17. Muhammad Harris was subsequently promoted to BS-18 in KWSB and
now he is appointed somewhere else. The Counsel submitted that the petitioner did not initiate
the matter of transfer. He further submitted that he was not a Civil Servant but became one
when he was absorbed.
C.R.P. No.760 of 2013 in Criminal O.P. 89 of 2011
96. The learned counsel Mr. M.M. Aqil Awan contended that the petitioner was absorbed from
Education Department to Revenue Department. He wants to be sent back to Education
Department. Petitioner is not asking for relief, he is just submitting that this is wrong.
97. The learned counsel Mr. Baz Muhammad Kakar contended that the petitioner was
appointed as Revenue Officer. He was then appointed Deputy Commissioner and was granted
out of turn promotion for eliminating encroachment in Port Qasim. His out of turn promotion
was withdrawn as a result of the impugned judgment.
98. Before adverting to the other issues raised by the learned Additional Advocate General Sindh
and the petitioners' counsel, we intend to first take up the contentions of Messrs Syed Iftikhar
Hussain Gillani, Muhammad Munir Piracha and Raja Muhammad Ibrahim Satti, Senior ASCs that
the Constitution Petitions Nos.21/2011, 21/2013, 23/2013 and 24/2013 filed by Dr. Nasim ul
Ghani and others ought to have been dismissed for want of notices under Order XXVIIA(1) of the
C.P.C. to the Advocate General Sindh. We have noticed that the Constitution Petition No.71 of
2011 was fixed in Court on 4-11-2011 when this Court ordered notices, as required under Order
XXVIIA(1), not only to the Advocate General Sindh, but also to the learned Attorney General for
Pakistan. Even in the Constitution Petitions Nos.21, 23 and 24 of 2013, filed subsequently,
notices were waived on behalf of the Advocate General Sindh. In response to the referred
notices, the Advocate General Sindh did appear and assisted this Court throughout the
proceedings. For the aforesaid reasons, the contention of the learned Counsel on the non-
issuance of the notices to the Advocate General Sindh on the subject Constitution Petitions is
without substance.
99. The learned Additional Advocate General Sindh as well as the other learned counsel for the
petitioners have objected to the maintainability of the Constitution Petitions under Article
184(3) of the Constitution, inter alia, on the ground that in the aforesaid Petitions, the
petitioners have raised individual grievances in regard to their seniority and promotions, which
under the service laws are not construed as 'vested right' of a Civil Servant. Their next argument
was that, if at all, any right of the petitioners is impaired, they could have approached the Sindh
Service Tribunal for redressal of their grievances. Similar arguments were advanced by the
learned Additional Advocate-General and some of the other counsel opposing the Constitution
Petitions at the time of hearing which were attended to and in para 114 of the impugned
judgment, it was concluded that the Petitions under Article 184(3) of the Constitution were
maintainable.
100. The Constitution gives protection to Civil Servants under Articles 240 and 242, which relate
to formation of service structure. Pursuant to Article 240(b), the Sindh Provincial Assembly has
enacted the Sindh Civil Servants Act 1973. This Court, in exercise of its Constitutional jurisdiction
under Article 184(3) of the Constitution, can examine the vires of an enactment either on its
own or on an application or petition filed by a party. The requirement of Article 184(3) of the
Constitution is that if this Court considers that a question of a public importance with reference
to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved,
it has the jurisdiction to pass appropriate orders not withstanding that there might be an
alternate remedy. The word 'consider' used in the Sub-Article (3) of Article 184, relates to
subjective assessment of this Court. The Supreme Court is the final authority upon the matters
affecting judicial determination on the scope of Constitutional provisions. Once the Supreme
Court arrives at the conclusion that a question of public importance having nexus with the
fundamental rights guaranteed by the Constitution has been raised, the exercise of its
jurisdiction under Article 184(3) cannot be objected to either by the Government or by any
other party.
101. The perception that a Civil Servant can only seek redressal of his grievance from the
Tribunal or from any other forum provided by the Civil Servants Act, is not correct. A Civil
Servant, being a citizen of this country, equally enjoys the fundamental rights conferred by
Chapter 1 of Part II of the Constitution. We, while examining the contentions made during the
hearing of the Constitution Petitions, have dealt in detail with the issue as to whether any rights
of the Civil Servants were offended by the impugned legislative instruments in the Constitution
Petitions. We, after hearing the parties, concluded that the impugned legislative instruments
were violative of Articles 240(b), 242(1B), 4, 8, 9 and 25 of the Constitution. We have also
observed in the judgment under review that the issues raised in the Constitution Petitions were
of public importance and had far reaching effects on service structure of the Province,
therefore, the Petitions under Article 184(3) of the Constitution, were maintainable before this
Court and hence the same were entertained.
102. The petitioners in the Constitution Petitions had challenged the vires of the legislative
instruments, raising the question of public importance relating to the rights of the Civil Servants
in Sindh. Such issues did cover the parameters, which attract the jurisdiction of this Court under
Article 184(3) of the Constitution and, therefore, following the dictum in the cases of Watan
Party and others v. Federation of Pakistan (PLD 2012 SC 292) and Tariq Aziz-ud-Din and others
(2010 SCMR 1301) it was held that the Petitions were maintainable. The issue of maintainability
of the Petitions cannot be raised either by the Additional Advocate-General or by the
petitioners' counsel once this Court, while passing the judgment under review, has held that the
Petitions were maintainable. We for the aforesaid reasons, hold that the contentions of the
learned Additional Advocate-General and other counsel on the issue of maintainability of the
Petitions are without force.
103. In order to appreciate the contentions of the learned Additional Advocate General and the
petitioners' Counsel as to whether the Chief Minister/Competent Authority is empowered under
Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to
absorb the beneficiaries from different organizations to Provincial Service or Cadre or post, we
need to examine the entire scheme of the Sindh Civil Servants Act, 1973 [hereinafter referred to
as "the Act"]. The Sindh Civil Servant Act 1973 has been enacted pursuant to the provisions of
Article 240 of the Constitution.
104. Section 2(1)(b) defines the term 'Civil Servant' and excludes under subsection (i) a person
who is on deputation to the Province from the Federation or any other Province or Authority.
Section 2(1)(d) defines the term 'Initial Appointment'. The initial appointment as per the
definition given under the Act means 'Appointment made otherwise than by Promotion or
Transfer'. According to section 2(1)(g), the term 'prescribed' means 'prescribed by rules'. Section
2(1)(i) defines 'Selection Authority', which includes the Sindh Public Service Commission, a
Departmental Selection Board, a 'Departmental Selection Committee' or other 'Authority or
Body' on the recommendations of, or in consultation with which, any appointment or
promotion, as may be prescribed, is made.
105. Section 5 of the Act provides the mode of appointments to a Civil Service of the Province or
a Civil Post in connection with the affairs of the Province to be made in the prescribed manner
by the Government or by a person authorized by it on its behalf. Section 6(1) of the Act provides
probation period for a Civil Servant, who is initially appointed to a service or post referred to in
section 5. Section 6(2) is an extension of initial appointment. Section 6(3) prescribes
examinations, tests or courses for a Civil Servant, which he requires to qualify before the expiry
of his probationary period. In case he fails to complete his required qualification during
probation satisfactorily, he would be discharged in terms of section (6)(3)(a) or under (b) of the
Act, and, if he is appointed to such service or post by promotion or transfer, he would be
reverted to the service or post from which he was promoted or transferred.
106. Section 7(1) of the Act speaks of confirmation of the Civil Servant on his satisfactory
completion of the probation period. Section 7(2) of the Act relates to a Civil Servant promoted
to a post on a regular basis. The Civil Servant falling under this category would also be eligible
for confirmation on his rendering satisfactory service for the prescribed period.
107. Section 8 of the Act provides that for proper administration of a service, cadre or post, the
appointing authority shall cause a seniority list of the members for the time being of such
service, cadre or post to be prepared. Section 9 of the Act provides that a Civil Servant
possessing such minimum qualification as may be prescribed, shall be eligible for higher post for
the time being reserved under the Rules for Departmental Promotion. Section 10 speaks of
posting and transfer of the Civil Servants within or outside the Province with the limitations
contained therein. Section 24 of the Act authorizes the Government to deal with the case of a
Civil Servant as it appears just and equitable, whereas section 26 empowers the Government to
frame Rules for regulating the service of a Civil Servant.
108. In exercise of powers conferred under section 26 of the Act, the Sindh Government,
besides other Rules, has also framed Rules called "The Sindh Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974" [hereinafter referred to as "the Rules"]. Rule 3(1) of the
Rules provides for appointment to a Civil Service or a post by three modes (i) by initial
Appointment, (ii) Appointment by promotion and (iii) Appointment by transfer.
109. Rule 3(2) provides the method of appointment, the qualifications and other conditions
applicable to a post, laid down by the department concerned in consultation with Services and
General Administration Department (S&GAD). Rule 4(1) provides the description of the
Authority competent to make appointments to various posts. Rule 5(1) empowers the
department or the Government to constitute Departmental Promotion Committees and or
Departmental Selection Committees in consultation with S&GAD. Part-II of the Rules deals with
the appointments by promotion and transfer whereas, Part III of the Rules deals with the initial
appointments.
110. Rule 6(1) authorizes the Government to constitute a Provincial Selection Board, which
would recommend appointments by promotion or transfer of the Civil Servants in BS-18 and
above carrying special pay. Whereas, Rules 7(1), (2) and (3) deal with appointments by
promotion and/or transfer of the Civil Servants without special pay on merits, on the
recommendations of the appropriate Departmental Promotion Committee or the appropriate
Selection Board constituted by the Government as the case may be. Rule 8 mandates that
Departmental Promotion Committee or the Provincial Selection Board shall consider the
qualifications, tenural limitations and requisite conditions laid down for promotion or transfer of
a Civil Servant. Rule 9(1) of the Rules authorizes the government/competent Authority to make
appointments by transfer of the Civil Servants on regular basis mentioned in the table given in
the Rule, which comprises of 3 columns. Column 2 of the table deals with the officers who could
be transferred, column 3 of the table mentions the Authority competent to order transfer and
column 4 of the table mentions the Department notifying such transfer.
111. Keeping in mind the aforesaid scheme provided by the Act, we would like to examine the
scope of Rule 9(1) of the Rules. In the first place, the definition given by section 2(1)(d) of the
Act clearly manifests that initial appointment is an appointment made otherwise than by
promotion or transfer. This definition has to be read with Part-II of Rule 6(A) of the Rules, which
relates to appointments by promotion or transfer. Section 5 of the Act, which deals with the
initial appointment to a Service or a Civil Post, has to be read with section 8(1) where it is
provided that for proper administration of service or cadre, the appointing authority is required
to prepare a seniority list with the categories given in the section based on the recruitment
Rules, which are framed in consultation with S&GAD under section 26 of the Act. The relevant
Rule in this respect is Rule 3. In other words, Section 8 of the Act compartmentalizes the
different classes of Civil Servants by dividing them in three categories i.e. service, cadre or post
as prescribed by recruitment Rules of their departments. This distinction of class has been
specifically introduced by the legislature with the sole object that if a person is initially
appointed in one service or cadre or post, his progression would remain in the same cadre,
service or post. His vertical growth or progression shall remain within his class by
compartmentalizing the Act which regulates his terms of service. What is more interesting is
that section 5 of the Act does not vest any discretion in the Government to relax the Rules for
change of cadre. The language of section 5 is very clear and mandates that the appointments to
the Civil Service or post shall be made in the prescribed manner.
112. Appointment by promotion as used in Rule 6(A) is the consequence of initial appointment.
Likewise, appointment by transfer is also the consequence of initial appointment. The
appointment by promotion is made within the cadre or service or post and, therefore, it does
not require any interpretation. The appointment by transfer can only be ordered if the Civil
Servant is eligible and qualifies for his transfer under Rule 3(2) of the Rules of the department to
which he is to be transferred, read with Rules 4, 7 and 8 of the Rules, which prescribe conditions
laid down for such appointments by transfer to such posts. A Civil Servant who is to be
appointed by transfer has to appear before the Departmental Promotion Committee or the
Provincial Selection Board which will consider his eligibility, qualification and such other
conditions applicable to the post as laid down in the recruitment rules of the department to
which his transfer is to be ordered.
113. It is contended by some of the learned counsel that the term 'person' used in Rule 9(1) of
the Act would mean that the Government or the competent authority can order appointment by
transfer of any person from anywhere within or outside the Act by appointing him to any post of
equivalent basic scale. We are not persuaded by this argument of the learned Counsel for more
than one reason. The word 'person' has not been defined either in the Act or in the Rules. It has
to be interpreted with the other rules relatable to the appointment by promotion or by transfer.
Rule 9(1) speaks of appointment by transfer to be made from amongst the persons holding
appointments on regular basis mentioned in column 2 of the table given under the Rule.
Therefore, the word 'person' as used in Rule 9(1) would relate to the officers, who are Civil
Servants and mentioned in column 2 of the table given under Rule 9(1). The word 'person' could
not be given an ordinary meaning beyond the scheme of the Act and Rules of 1974.
114. We, after looking at the scheme of the Act and the Rules framed thereunder, are clear in
our minds that Rule 9(1) does not empower the Government or Selection Authority defined
under the Act to appoint a Civil Servant or any other person by transfer to any other cadre,
service or post without his eligibility, qualifications and the conditions laid down under Rules
3(2), 4, 6, and 8 of the Rules. Section 8 of the Act makes class of Civil Servants for proper
administration and such class is not interchangeable at the whims of the Selection Authorities
and/or the Government to extend favours to their blue eyed. There is no discretion given under
Section 5 of the Act to appoint any person in Civil Service against a Civil Post in the manner
other than prescribed by the Rules. Rule 9(1) does not confer permanent status on Civil Servant
on his appointment by transfer nor it contemplates his absorption in the transferee Department
as a consequence of his appointment. There is neither procedure nor mechanism provided
under the Act or the Rules to treat appointment by transfer as absorption in the transferee
department. Rule 9(1) cannot be used as a tool to allow horizontal movement of a civil servant
from his original cadre to another cadre against scheme of the Act and the Rules of 1974. The
term 'transfer' has to be interpreted in its common parlance and is subject to the limitations
contained in Rules 3, 4, 6, 7 and 8 of the Rules 1974. Any appointment by transfer under Rule
9(1) has to be for a fixed term, and, on completion of such term, the Civil Servant has to join
back his parent department. The word 'appointment' used in the Rule 6(A) cannot be equated
with the word 'initial appointment' used in the Act which excludes appointment by transfer and
promotion. Therefore, restricted meaning has to be given to the expression 'appointment by
transfer'. For the aforesaid reasons, we are clear in our minds that the concept of absorption of
a Civil Servant and/or Government servant is foreign to the Act as well as Rule 9(1) of the Rules.
Rule 9(1) does not permit transfer of non-Civil Servant to a non-cadre post or to a cadre post.
We, in para 126 of the judgment under review, have not discussed the scope of Rule 9(1) as
neither the Government nor any of the parties appearing before us had taken the plea that they
were appointed by transfer and absorbed under Rule 9(1) of the Rules. However, we had
recorded the following finding on Rule 9(1) which is reproduced:--
"No Civil Servant of a non-cadre post can be transferred out of cadre to be absorbed to
a cadre post which is meant for recruitment through competitive process. A Civil Servant
can be transferred out of cadre to any other department of the Government subject to
the restrictions contained under Rule 9(1) of the Rules of 1974."
115. Now, after we have scanned the entire scheme of the Act and the Rules framed
thereunder, we are clear in our minds that the aforesaid finding was in accord with the Act
which has been promulgated pursuant to Articles 240 and 242 of the Constitution. We further
clarify that even a Civil Servant cannot be transferred to any other cadre, department, post or
service unless he is eligible for such post, in terms of the Rules 3(2) and qualifies the test of
Rules 4, 6, 7 and 8 of the 1974 Rules as discussed hereinabove.
116. The term 'transfer' used in Rule 9(1) has not been defined either in the Act or the Rules of
1974, therefore, we have to attach an ordinary dictionary meaning to it. The ordinary dictionary
meaning of the term 'transfer' means 'to move from one position to another.' If this meaning is
attached to the term 'transfer' used in Rule 9(1), it would lead to mean an ordinary posting of a
Civil Servant from one position to another. Such transfer, however, cannot be construed to
qualify the term 'absorption' as has been contended by the learned Counsel, which term is alien
to the Act and the Rules. Therefore, the appointment by transfer under Rule 9(1), as has been
interpreted by us, would be confined to the parameters laid down by the scheme of the Act and
the Rules of 1974.
117. We have heard the learned Counsel representing beneficiaries on the scope of Rule 9-A of
the Rules. Under Rule 9-A, a person who has been rendered surplus on account of abolition of
his post, in any Office or Department of the Government or autonomous body and/or on
account of permanently taking over of the administration of such autonomous body wholly or
partially by the Government, can be appointed by transfer to any post in a Department or Office
in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for
appointment to such Office. It is further provided under Rule 9-A of the Rules that such person
shall be appointed to a post of equivalent or comparable basic scale and, in case such post is not
available, then to a post of lower Basic Scale. Rule 9-A of the Rules provides further restriction to
the seniority of such person to the post by reckoning his seniority at the bottom of the seniority
list from the date of such appointment, with a further rider that his previous service, if not
pensionable, shall not be counted towards pension and gratuity. We have dealt with the
aforesaid issue in para 116 of the judgment under review and have set parameters of Rule 9-A
of the Rules in para 126 of the judgment under review.
118. After hearing the arguments of the learned counsel for the petitioners, we need to further
clarify the scope of Rule 9-A of the Rules. Rule 9-A of the Rules has been introduced with the
object to accommodate the persons who are rendered surplus by abolition of their posts or the
organization in which they were working has been taken over by the Sindh Government. This
Rule, as has been noticed, cannot be used as a tool to accommodate a person by abolishing his
post with an object to appoint him by transfer to a cadre or service or post in deviation of Rule
3(2), which is a condition precedent for appointment to such post. In order to exercise powers
under Rule 9-A of the Rules, there has to be some justification for abolition of the post against
which such person was working. This justification should come from the Department and or
organization which shall be in consultation with the S&GAD and approved by the Competent
Authority. Rule 9-A of the Rules does not permit appointment by transfer of a non-Civil Servant
to any other Department and/or organization controlled by the Government to a post which
restricts the transfer under Rule 3(2) of the Rules. A person can only be appointed by transfer
under Rule 9-A, if he has the eligibility, matching qualifications, expertise coupled with the
conditions laid down under Rule 3(2) for appointment to such post. The Competent Authority
under Rule 9-A of the Rules while ordering appointment by transfer cannot lose sight of the
conditions prescribed under Rules 4, 6(A) and 7. Therefore, any appointment by transfer under
Rule 9-A of the Rules in violation of the aforesaid conditions is a nullity, and the conclusion
reached by us in para 126 of the judgment under review has to be read in addition to the
findings recorded herein above.
ABSORPTION
119. The learned Additional Advocate-General, as well as the counsel representing the
petitioners had argued that the Competent Authority had the powers under Rule 9(1) of the
Rules to absorb any person from within and/or outside the Province through appointment by
transfer. We have already dealt with the scope of Rule 9(1) of the Rules, which permits
appointment by transfer subject to the conditions prescribed therein. It does not permit
absorption from one cadre to another cadre. The Competent Authority in the cases of the
petitioners has ordered absorption by relaxing the rules, which is in deviation of the scheme of
the Act framed pursuant to the dictates of Article 240, read with the qualifications incorporated
in the Rules of 1974. We may observe that section 5 of the Act does not give any discretion to
the Selection Authority to bypass the restriction by relaxing the Rules. If such discretion is
allowed to prevail, it would destroy the fabric of Civil Service, which is protected by the
mandates of Articles 240 and 242 of the Constitution. It is also a misconception that Rule 9-A
permits transfer of a non-Civil Servant to a Cadre, Service or Post meant for a Civil Servant,
recruited in the Cadre or Service or Post after competitive process. Such an appointment by
transfer in the nature of absorption would only be permissible, if the pre conditions laid under
Rule 9-A of the Rules are met.
120. At the time of hearing of Petitions No.71 of 2011 and others the learned Additional
Advocate-General, as well as the petitioners appearing in these Petitions, attempted to justify
absorption on the basis of legislative instruments, which were declared unconstitutional. In
these review proceedings, the petitioners have changed their stance claiming their absorption
on the basis of Rule 9(1) of the Rules. We have separately dealt with the scope of Rule 9(1) of
the Rules. Under Rule 9(1), appointment by transfer would only mean an ordinary transfer from
one post to another post, subject to the restrictions contained in the Rules of 1974. Neither a
person can be absorbed under these Rules nor a Civil Servant or non-Civil Servant or a
deputationist could be allowed to travel horizontally outside his cadre to penetrate into a
different cadre, service or post through an appointment by transfer. Rule 9(1) cannot override
the provisions of section 8 of the Act, which have been introduced by the Legislature for proper
administration of Service law. For the aforesaid reasons, in addition to our findings recorded in
the judgment under review, we are of the considered view that the petitioners have failed to
make out any justifiable ground to seek review of the judgment.
C.R.P. 409 of 2013 Mr. Aqail Awan for the petitioner 1 - 3 Criminal R.P.81 of 2013 and
C.R.P. 412 of 2013
121. It was contended by Messrs Aqil Awan, Shoaib Shaheen, Muhammad Munir Peracha and
Tariq Mehmood, learned ASCs, that the impugned judgment is only applicable to Civil Servants
and does not cover non-civil servants. We, with respect, disagree with the contentions of the
learned Counsel. The impugned judgment would be equally applicable to the Government
Servants, employees of any statutory or non-statutory organization controlled by the Sindh
Government, who were wrongly absorbed in different Cadres, Services, Posts of the
Government Departments, Statutory Organizations against their service Rules. The contention
of the learned counsel was that the petitioners were non-Civil Servants and were absorbed from
different organizations to Sindh Councils Unified Grades Service under Rule 9(1) of the Rules of
1974, read with Rule 12(5) of the Unified Grades Service Rules 1982. We have already held that
the power to appoint by transfer under Rule 9(1) would only extend to a Civil Servant. The Sindh
Councils Unified Grades Service Rules 1982 regulate the terms and conditions of the employees
appointed therein. Rule 3(1) provides composition of Service, whereas Sub-Rule (2) of Rule 3
spells out its Sub-Branches. Rule 3(4) places a restriction on the members for transfer from one
Branch or Sub-Branch to another Branch or Sub-Branch within the service group. Rule 12 of the
(Unified Group) Service Rules deals with the seniority of the members. Rule 12(5)(a) confers
powers of transfer by Appointment on the competent authority. The petitioners, who were not
members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in
deviation of the Service Rules of 1982 cannot be allowed to continue in the Unified Services
Group. The Chief Minister or the Board cannot induct any stranger in the service of Unified
Group either by exercising powers under Rule 9(1) of the Rules of 1974 or by Rule 12(5) of the
Rules of 1982. Any such induction is against the recognized norms of Service law and, therefore,
the petitioners were liable to be repatriated to their parent departments forthwith in terms of
the judgment under review. 'Absorption' of the petitioners under the garb of 'Appointment by
Transfer' in the Unified Services Group has directly affected the rights of the employees in the
service, guaranteed under Articles 4 and 9 of the Constitution. Such act on the part of the Chief
Minister or the Board had circumvented the very framework of the Service Rules of 1982 by
introducing a parallel system based on discrimination and favourtism, which the law does not
recognize.
OUT OF TURN PROMOTIONS
122. The issue of out of turn promotions has been dealt with by us in detail in the judgment
sought to be reviewed and we reached the conclusion that it was violative of Articles 240, 242,
4, 8, 9 and 25 of the Constitution. Mr. Adnan Iqbal Chaudhry, learned Advocate Supreme Court
has contended that section 9-A of the Act has not been struck down by this Court, while
declaring the out of turn promotions as un-constitutional. We are mindful of this fact as we have
held that the Competent Authority can grant awards or rewards to the Police Officers, if they
show act of gallantry beyond the call of duty. However, we had struck down the very concept of
'out of turn promotion' being violative of Constitution for the reasons incorporated in paras 158
to 164 of the judgment under review.
123. The contention of Mr. Adnan Iqbal Chaudhry, learned Advocate Supreme Court was that
the provisions of section 9-A of the Act could not be interpreted to exclude other categories of
Civil Servants except police force. According to him any Civil Servant other than the Police
Officer, can also perform gallantry act beyond the call of duty. We are not persuaded by the
arguments of the learned counsel for the petitioner as the terms 'Gallantry' and 'Beyond the Call
of Duty' have to be interpreted by invoking the Rule of 'ejusdem generis'. The expression
'Gallantry' used in Section 9-A of the Act has not been defined either in the Act or in the Rules,
therefore, we have to give to term 'Gallantry' the ordinary dictionary meaning while interpreting
it. The term 'Gallantry' means 'Brave, Courageous, valiant, fearless, bold and daring'. All these
adjectives directly relate to the nature of duty which a Civil Servant performs. These adjectives
can only be attached to security personnel. Therefore, we can safely hold that the term
'Gallantry' as used in section 9-A of the Act could only apply to Police Personnel and award and
reward on their gallantry performance be conferred upon them and not to other species of Civil
Servants. However, such award or reward should be given under a transparent process after
objective assessment of their valour by a committee, in a just manner under the prescribed
Rules.
124. Petitioners in Criminal R.P. No.74 of 2013, Engineers by profession, appearing in person
have contended that they were given out of turn promotions in the year 2004, as they made
efforts to provide water to the persons at the tail, and in discharge of their duties they were
exposed to criminal prosecution. This is the normal duty of a Civil Servant of the Irrigation
Department and it cannot be construed to be a Gallantry act beyond the call of duty. Besides,
we have already held that grant of out of turn promotion is unconstitutional, therefore the
petitioners' claim does not merit acceptance.
Criminal R.P.84 of 2013 Khurram Waris v. Chief Secretary Sindh etc.
125. Mr. Irfan Qadir, learned Advocate Supreme Court appearing on behalf of Khurram Waris (in
Criminal Review Petition No. 84 of 2013), has contended that the petitioner was granted out of
turn promotion for his gallantry act beyond the call of duty by risking his life and displaying
extraordinary bravery. We are provided an extract from his service profile by the Sindh
Government. According to the Service profile of the petitioner, he is a Sub-Inspector in BS-14
and was granted out of turn promotion three times; (i) from Sub-Inspector to the rank of
Inspector in BS-16, (ii) from Inspector to the rank of DSP in BS-17 and (iii) from DSP to the rank
of SP in BS-18. This Court, after hearing the Sindh Government and other parties, had struck
down the legislative instruments which gave protection to the out of turn promotions by the
judgment under review, declaring it as unconstitutional.
126. The contention of the learned Advocate Supreme Court that the judgment of the High
Court of Sindh relating to the 'out of turn promotion' is still in field, therefore, he prayed for
formulation of a Committee to scrutinize the cases of the Police Officers, who were given out of
turn promotion, is without substance. We have already declared 'out of turn promotion' as
unconstitutional, therefore, after recording such findings, the need of forming a Committee
under Rule 8-B for scrutinizing the cases of Police Personnel is of no significance. However, they
could be awarded or rewarded compensation for their exceptional acts of gallantry.
127. We do support that the morale of the Police personnel be boosted as intended in the
legislative instruments, which were struck down by us and on their exceptional acts of gallantry,
they should be given awards and rewards on merits; but even this has not been done by the
Sindh Government. In recent past, a Senior Police Officer, who was known for his bravery, has
lost his life in an attack by the terrorists and his family was not offered compensation publically.
Likewise, another senior police officer, who is also known for his courage, in combating
terrorism in Karachi, was attacked by the terrorists and had received serious injuries but
survived. The Sindh Government has not so far publically announced a reward for him, which is
pathetic. In fact in para 164 of the judgment under review, we had directed the Sindh
Government to constitute a Committee under Rule 8-B, to evaluate the performance of the
Police Officers upon whom the proposed awards or rewards have to be bestowed. We
recommend that the Police Officers, who risk their lives in the given most unstable conditions of
Karachi, should be given adequate protection and in case, where the Police Officers while
fighting against terrorism have lost their lives, their families should be looked after by the Sindh
Government. The Sindh Government should adopt the policies of the Armed forces, where in
such like cases, the personnel and their families are taken care of under a prescribed procedure.
128. For the aforesaid reasons, which we had already recorded in the judgment under review,
we are not persuaded by the contentions of the learned Advocate Supreme Court to change our
earlier view. This Review Petition merits dismissal.
WHETHER THE JUDGMENT UNDER REVIEW OUGHT TO HAVE BEEN MADE PROSPECTIVE
129. The learned Additional Advocate-General Sindh and almost all the counsels representing
the petitioners have contended that the Judgment under review ought to have been applied
prospectively. The learned counsels have jointly contended that the benefits accrued to the
petitioners by the legislative instruments, which were struck down by this Court, could not have
been withdrawn as their rights were protected by the principles of locus poenitentiae. Mr. Irfan
Qadir, learned Advocate Supreme Court, has contended that the judgment is in personam and
would not apply to his clients. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme
Court has contended that judgments always apply prospectively and not retrospectively. In this
regard he has placed reliance on the case 'Regarding Pensionary Benefits of the Judges of
Superior Courts from the date of their respective retirements, irrespective of their length of
service as such' (PLD 2013 SC 829). We have taken note of such contentions of the learned
counsel at the time of hearing of the original Petitions, and were not persuaded for reasons
stated in paras 174 and 175 of the judgment under review. Now, it is a settled law of this Court
that no right or obligation can accrue under an unconstitutional law. Once this Court has
declared a legislative instrument as being unconstitutional, the effect of such declaration is that
such legislative instrument becomes void ab initio, devoid of any force of law, neither can it
impose any obligation, nor can it expose anyone to any liability.
130. In the case in hand, the benefits extended to the petitioners through the impugned
legislation, were not only violative of law but were also declared ultra vires of the Constitution.
In such like circumstances, the benefits, if any, accrued to the petitioners by the said legislative
instruments shall stand withdrawn as if they were never extended to them. The judgment relied
upon by Syed Iftikhar Hussain Gillani is distinguishable on facts. Under the said judgment, this
Court had re-visited the earlier judgment of this Court titled as Accountant General Sindh and
others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) by which the retired Judges were
granted pensionary benefits. In the said case, it was held that the pensionary benefits granted to
retired Judges were violative of the scheme and as such the judgment was declared as per
incurium, declaring further that no pensionary benefits could be granted to any retired Judge,
unless he serves for five years in office. In the present proceedings, this Court has struck down
the legislative instruments by which benefits were extended to a class of persons, in complete
disregard of the service structure mandated by the provisions of Articles 240 and 242 of the
Constitution. Through the legislative instruments, which were struck down by this Court, undue
favours were extended to a few individuals, for political considerations against the mandate of
the Act and the recruitment Rules framed thereunder. Such instruments were held to be
violative of Articles 4, 8, 9, 14 and 25 of the Constitution. Through these legislative instruments,
many of the petitioners were absorbed and/or given out of turn promotions or back-dated
seniority, depriving other meritorious Civil Servants of their seniority and smooth progression in
career. A substantial number of unfit and unmeritorious Officers were thus absorbed/promoted
out of turn/given back-dated seniority in important cadres, services and posts by extending
undue favors by the Authorities, skipping the competitive process. Such absorptions etc., which
were not permissible under the Civil Servants Act, had practically obliterated the Constitutional
and legal differentiations that existed amongst various cadres, posts and services. We have
already observed in our judgment that the legislative instruments, which were struck down by
this Court, had engendered a culture of patronage, bringing more politicization, inefficiency and
corruption in the Civil Service.
131. In such like circumstances, by striking down the legislative instruments, the Court was
obliged to provide a corresponding remedy to the aggrieved Civil Servants who had suffered
because of the unconstitutional and illegal benefits accrued to the beneficiaries of the impugned
legislations. As a result of the judgment under review, the rights of the meritorious Civil Servants
as provided under the Constitution and law have been restored, ensuring, inter alia, their inter
se seniority and legitimate expectations of attaining upper ladder of their careers.
132. We hold that the cases relied upon by Syed Iftikhar Hussain Gillani, learned Senior
Advocate Supreme Court, and the other learned Counsel are distinguishable on facts. In the
present case if the contentions of the learned counsel are accepted then on the one hand the ill-
gotten benefits would receive judicial approval against the provisions of the Constitution and
Law and, on the other hand, the sufferers of the benefits accrued to the petitioners would be
left with no remedy or recompense. In other words, the progression and career of the
meritorious Civil Servants would suffer irretrievably, whereas the beneficiaries of
unconstitutional and illegal measures would thrive and progress their careers unimpeded if the
judgment is made applicable prospectively. Whereas in the case 'Regarding Pensionary Benefits
of the Judges of Superior Courts (supra) relied upon by the learned Advocate Supreme Court, no
one will be burdened except the public exchequer.
133. This Court, in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and
others (PLD 2010 SC 265), while striking down the N.R.O, had directed to withdraw the benefits
extended to the accused persons under the N.R.O and, consequently they were ordered to be
retried.
134. The learned counsel for some of the petitioners have objected to the cut-off date of 1994
for the purposes of application of this judgment. We have clarified this fact in our judgment
under review that this date was provided to us by the learned Additional Advocate-General, on
instructions of S&GAD. We confronted the learned Additional Advocate-General to satisfy us as
to the reasons for mentioning the year 1994. He contended that in the original Constitution
Petition No.D-932 of 2009 of High Court of Sindh, Karachi, filed by Dr. Nasimul Ghani Sahito and
others, the absorption of the Officers from 1994 onwards was challenged and therefore, he, on
instructions of the S&GAD, intimated this Court that the legislative instruments, which were
impugned in Constitution Petitions Nos.71 of 2011, 21, 23 and 24 of 2013 before this Court,
extend protection to the Officers absorbed and/or granted out of turn promotions or back-dated
seniority from 1994 onwards. We will not delve into this factual controversy of the cut-off date
as we believe, we have enunciated the principles in the judgment under review strictly in the
light of the Constitutional and statutory provisions, which are not time bound.
MALA FIDE
135. The contentions of the learned Additional Advocate-General Sindh and some of the
petitioners' Counsel that the judgment under review has attributed mala fide to the Legislature
is also without substance. No such finding has been recorded in the judgment under review.
However, one of the Hon'ble Judges of the Bench, while concurring with the findings of the
judgment under review, had added a note wherein it had been maintained that in the given
circumstances of the case it was difficult to attribute bona fide to the legislature. It had been
clearly observed in that note that mala fide cannot be attributed to the legislature. Therefore,
the contentions of learned Additional Advocate-General and counsel are devoid of any force.
136. During hearing of the Review Petitions, we have noticed that the competent authority in a
large number of cases, had passed orders of absorptions of the Civil Servants/Government
Servants/Employees of Autonomous Bodies, semi-Autonomous Bodies and Corporations, and
had granted them back-dated seniority besides the out of turn promotion, by using the
expression "In Relaxation of Rules". Ex facie, these powers were exercised by the Competent
Authority by resorting to section 24 of the Act, which is an enabling provision and confers
residuary powers upon the competent authority, to redress the grievance of an individual in a
hardship case.
137. The Competent Authority under section 24 of the Act can grant benefit to an individual if it
considers it just and equitable, without offending and impairing the statutory rights of other Civil
Servants/Employees. The exercise of powers under section 24 of the Act by the Competent
Authority in cases of the petitioners travelled beyond the scheme of the Act, framed under the
mandate of Articles 240 read with Article 242 of the Constitution. The Competent Authority can
exercise powers under section 24 of the Act, by relaxing rules, if there is a vacuum in law, but
such powers cannot be exercised under the garb of the term "Relaxation of Rules" with the
intent to by-pass the mandate of law for extending favours to a person or an individual,
offending and imparing the statutory rights of other Civil Servants. The Competent Authority, by
an executive order, cannot frame Rules in exercise of powers under section 24. The authority
conferred under section 24 of the Act is confined to hardship cases, without negating the vested
rights of the other Civil Servants and/or causing prejudice to their interests.
138. During the hearing of the review petitions, we have noticed that the Sindh Government has
upgraded certain posts of individuals without any mechanism of upgradation to benefit them.
The expression 'upgradation' is distinct from the expression 'promotion' which has not been
defined either in the Act or the Rules framed thereunder, and is restricted to the post and not
with the person occupying it. The upgradation cannot be made to benefit a particular individual
in terms of promoting him to a higher post or further providing him with the avenues of lateral
appointment or transfer or posting. In order to justify the upgradation, the Government is
required to establish that the department needs restructuring, reform or to meet the exigency
of service in public interest. In the absence of these pre-conditions, upgradation is not
permissible. We have noticed that some of the civil servants have been promoted to higher
posts against the tenural limitations, without qualifying the requisite departmental
examinations/trainings under the garb of upgradation. Such civil servants having not been
promoted in accordance with law need to be reverted to their substantive ranks/posts which
they were holding immediately before their upgradation and their seniority shall be determined
along with their batchmates. The Sindh Government shall undertake this exercise and report
compliance within 4 weeks through the Chief Secretary, Sindh.
ABOLITION OF POSTS
139. During the hearing of the Review Petitions, we have noticed that the Sindh Government
has abolished some posts in individual cases with the object to accommodate civil Servant or
Government Servant to appoint him by transfer to a post, service or cadre contrary to the
restrictions contained in Rule of 1974 against his eligibility. The term 'abolition' has not been
defined in the Sindh Civil Servants Act, 1973. However, this expression has been used in Rule 9-A
of the Rules of 1974. A department can only abolish a post with the concurrence of the S&GAD.
Abolition of a post is permissible in case, if the department requires restructuring, reform or to
meet exigency of service in public interest. The department can abolish a post for justiciable
reason. Therefore, in future if a post has to be abolished within the Department and/or within
the statutory body or organization controlled by the Sindh Government, the Department shall
seek concurrence from the S&GAD coupled with the reasons justifying abolition.
WHETHER A CIVIL SERVANT CAN APPROACH THE HIGH COURT OF SINDH IN A SUIT OR IN
CONSTITUTION PETITION IN RELATION TO TERMS AND CONDITIONS OF HIS SERVICE
140. We have noticed that since more than a year, the High Court of Sindh has been
entertaining Civil Suits of Civil Servants relating to their terms and conditions of service. This
issue was taken note of by us in our orders dated 30-8-2012 (in Cr.Misc. Applns No. 42-K of 2012
and others) and 3-1-2014 (in Civil Petition No. 345-K of 2013), relevant portions of which are
reproduced below:--
"We have heard the learned Advocate Supreme Court, learned AAG and Secretary
Services and have also perused the record. It is an admitted fact that the applicant is on
deputation and issue of right of audience of a deputationist has been fully dealt with in
the Judgment dated 10-1-2011 of this Court in Civil Petition No.802-K of 2011. The
Applicant after the Judgment of this Court dated 10-1-2011 and order of this Court
passed on 2-5-2012 did not relinquish the charge and challenged the notification of his
repatriation before Sindh High Court, which notification was issued on 2-5-2012
pursuant to the directives of this Court and obtained status-quo order. The High Court,
in exercise of its Constitutional jurisdiction, could not pass an order of status quo in
respect of a notification (No.S.O.II (SGA&CD)1-169 dated 2-5-2012, which on the face of
it shows that it was issued by the Government of Sindh in strict compliance of the order
of the Supreme Court dated 2-5-2012. However, a learned Division Bench of the High
Court of Sindh in an unprecedented manner, in violation of Article 189 of the
Constitution, not only entertained the petition of the applicant praying therein for such
relief and passed such order, but repeated this illegality by passing similar orders in
some other petitions. It seems that the respondents in these cases were also passively
party to such illegality as they did not respond to such illegality by raising such
objection, which was otherwise evident from the very language of the said notification.
We expect that in future the High Court of Sindh would be vigilant while entertaining
petitions of such nature. A copy of this order may be sent to the Registrar, High Court of
Sindh for perusal of the Honourable Chief Justice of the High Court and its circulation
amongst other Honourable Judges of the High Court of Sindh."
"The issue of intervention of Sindh High Court in service matters has also been noticed
by this Court on 20-12-2013 in Civil Petition No. 1927 of 2013 whereon a Misc.
Application bearing No. 7632/2013, following order was passed:-
(4) We have noted with concern that off late interference has been made by the
High Courts in exercise of jurisdiction under Article 199 of the Constitution
notwithstanding the Constitutional bar contained in Article 212 of the
Constitution. In the referred circumstances, we are persuaded to direct the
Registrar, High Court of Sindh, Karachi, to give a detail list of all those pending
cases in which order of a departmental authority in a service matter has been
challenged and stay has been granted. The report shall be submitted within two
weeks of the receipt of this order."
(7) We have been provided with a list of the suits and Constitutional Petitions
relating to service matters of the police officers pending in the Sindh High Court
and in many of these cases, interim orders have been passed. We are further
informed that pursuant to the judgment of this Court referred to hereinabove
the Inspector General of Police, Sindh, has issued a Standing order to re-fix the
seniority position of different police officers on their demotion in line with the
findings of the judgment of this Court and in a suit bearing No.970 of 2013, the
Sindh High Court has suspended the operation of said Standing Order, as a
result of which the Sindh Government cannot fix seniority position of the police
officers, which run in many thousands.
(9) Prima facie, we fail to understand as to how could the Sindh High Court while
exercising jurisdiction as a Civil Court under Civil Procedure Code or even under
the Constitution can overlook the provisions of Article 212 of the Constitution,
which bars their jurisdiction. Besides, pursuant to the judgment of this Court
neither a party can approach the Sindh High Court directly nor the latter can
entertain any proceedings either on the Original side or under Article 199 of the
Constitutional jurisdiction on any of these issues decided by this Court.
Moreover, seniority of a Civil Servant relates to the terms and conditions of a
Civil Servant and the Service Tribunal has the jurisdiction to decide it.
(10) We are also surprised to notice that inspite of the specific directions
contained in the judgment of this Court, which judgment was ordered to be
circulated amongst the learned Judges, the Suit No. 102 of 2013 is still pending
with interim order, which is violative of Article 189 of the Constitution. We are
disturbed to notice that Sindh High Court has assumed the jurisdiction of Sindh
Service Tribunal and is entertaining civil suits and Constitution petitions
overlooking the bar contained under Article 212 of the Constitution.
(11) In these circumstances, we feel it more appropriate that this petition and
the list of cases submitted by Mr. Ali Sher Jakhrani, AIGP, Legal, through Mr.
Muhammad Sarwar Khan, Additional AG, Sindh, be placed before the
Honourable Chief Justice of Pakistan, for his kind perusal and passing
appropriate orders, which may be taken up along with Petition No. 1927 of 2013
in which a directive was issued by this Court to the Registrar of Sindh High Court
to submit a list of pending cases relating to service matters, as reproduced
hereinabove, so that the parameters under which High Court while exercising
jurisdiction either under C.P.C. or the Constitution, can be determined and issue
be settled once for all and or in the alternative the issue can be taken up along
with the Review Petition filed by the Sindh Government against the referred
judgment of this Court, as the intervention of the nature by the High Court
would defeat the effect of the judgment of this Court and the beneficiaries of
the instruments which were declared ultra vires of the Constitution should be
dealt with in terms of the judgment of this Court without loss of time. Prima
facie, beneficiaries of the instruments which were declared ultra vires of the
Constitution through the different proceedings initiated by them in the Sindh
High Court in fact have attempted to defy the judgment of this Court and are
liable to be proceeded against for committing wilful contempt."
141. Besides the aforesaid orders, even in the judgment under review, we have observed as
under:--
"177. Before parting with the judgment, we are surprised if not shocked to see that the
Sindh High Court has entertained a Civil Suit No. 102 of 2013 filed by Mirza Shahbaz
Mughal relating to out of turn promotion, which is one of the issues pending
adjudication before this Court. In this respect the background is that a Criminal
Misc.Application No.278 of 2013 was filed by Syed Mehmood Akhtar Naqvi, in which he
has given brief story of Shahbaz Mughal, who was appointed ASI on 29-1-1996 and
promoted as Sub-Inspector on 17-12-2001 and was confirmed as Sub-Inspector on 18-
12-2003. He was promoted as Inspector on 26-4-2004 on ad hoc basis with the
condition that he will not claim seniority over his seniors and will retain his original
position in the promotion list and his promotion will be regularized on his turn along
with his batch mates vide order dated 18-2-2009. However, he was promoted out of
turn on ad hoc basis as DSP in his own pay and scale. An application was made to the
Chief Minister by his mother and his seniority was fixed and regularized on 1-4-2011. On
the intervention of this Court on 3-9-2012 out of turn promotion granted to him along
with Hamid Ali Bhurgari and Abdul Jabbar Khan and their inter se seniorities were
revised and he was reverted to his original rank of Sub-Inspector.
178. .......................................................................
179. .......................................................................
180. .......................................................................
181. In fact, order of the nature has disturbed us and in such like situation earlier this
Court has passed orders when the Sindh High Court entertained Constitutional Petitions
and suspended Notifications of the Sindh Government which were issued under the
directives of this Court. AG office has also failed to discharge its duties by not bringing
the real facts to the notice of the Sindh High Court, which has resulted in suspension of
the Notification. In any event the proceedings in Suit will be regulated by the findings in
these proceedings."
142. The High Court of Sindh, overlooking the aforesaid observations, has continuously
entertained the Civil Suits and Constitutional Petitions in defiance of Article 189 of the
Constitution. We did communicate to the High Court of Sindh through the Registrar that the
High Court of Sindh does not have jurisdiction over the aforementioned issues and that a Civil
Servant can only approach the Services Tribunal for redress of his grievances, but this direction
has not been cared about by some of the learned Judges, overlooking the provisions of Articles
175, 189 and 212 of the Constitution.
143. Section 9 of Civil Procedure Code confers general jurisdiction upon Courts to try all suits of
civil nature. In order to appreciate the scope of section 9 of C.P.C., the same is reproduced
herein under:--
"(9) Courts to try all Civil Suits unless barred.---The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or impliedly barred.
144. Civil Courts are Courts of ultimate jurisdiction with regard to a civil right, duty or obligation,
unless their jurisdiction is either expressly or impliedly barred. Section 9 of the Code only
confers jurisdiction upon Courts and does not grant a substantive right of action. The right of
action is to be established by reference to the substantive law. After the promulgation of the
Constitution of 1973, the jurisdiction of civil courts has been restricted in respect of the matters
of Civil Servants relating to their terms and conditions of service. Article 240 of the Constitution
in Part XII, Chapter-I deals with structure of Civil Services. Pursuant to Articles 240 and 242 of
the Constitution, the Sindh Assembly promulgated Sindh Civil Servants Act, 1973, on 5th
December 1973, to regulate the appointment of persons to, and the terms and conditions of
service of persons in the service of Pakistan in connection with the affairs of the province of
Sindh. The language of the preamble is reproduced hereunder:--
"To regulate the appointment of persons to, and the terms and conditions of service of
persons in, the service of Pakistan in connection with the affairs of the Province of
Sindh.
WHEREAS it is expedient to regulate by law, the appointment of persons, to, and the terms and
conditions of service of persons in, the service of Pakistan in connection with the affairs of the
Province of Sindh and provide for matters connected therewith or ancillary thereto:"
145. The Preamble to the Civil Servants Act, in fact, reflects the language of Article 240 of the
Constitution. On the 5th December, 1973, the Sindh Assembly also promulgated the Sindh
Service Tribunals Act, 1973 by which Service Tribunal was established to exercise jurisdiction in
respect of matters relating to the terms and conditions of service of Civil Servants. The Preamble
to the Sindh Service Tribunals Act is reproduced herein under:--
146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive
jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants,
including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by
the provisions of the Sindh Service Tribunals Act, 1973, read with Article 212 of the Constitution.
147. Section 4 of the Service Tribunals Act provides Civil Servant with the right of filing an
Appeal before the Tribunal, subject to the qualifications provided therein.
148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of
Sindh, exercising jurisdiction on the original side as a civil court under C.P.C. cannot entertain a
civil suit of a civil Servant relating to the terms and conditions of his service. The exercise of
jurisdiction by the High Courts is conferred under Article 175(2) which reads as under:--
"175(2) No Court shall have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law."
149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in
respect of the matters pertaining to terms and conditions of civil servants. In other words, the
provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and
Tribunals. The ouster contemplated under the said Article is a Constitutional command, and,
therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject,
which squarely falls within the exclusive domain of Tribunals.
150. The High Court of Sindh has completely overlooked the intent and spirit of the
Constitutional provisions relating to the terms and conditions of service, while entertaining Civil
Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article
212. The expression 'Terms and Conditions' includes transfer, posting, absorption, seniority and
eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold
a particular post or to be promoted to a higher post or grade as provided under section 4(b) of
the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a
settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or
petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the
learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions
with regard to the terms and conditions of civil servants.
151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and
Constitution petition filed by a civil Servant with regard to his terms and conditions of service is
violative of Articles 175, 212 and 240 and the law.
152. During the present proceedings, we were informed by the learned Additional Advocate
General Sindh and other petitioners that the Civil Servants have filed suits and petitions before
the High Court of Sindh on the subject, which was conclusively determined by this Court in its
judgment under review. We called for the list of the Constitution Petitions as well as of the suits
which were filed before the High Court of Sindh, and we are shocked to notice that numerous
petitions and suits filed by the Civil Servants were pending and in some cases even restraining
orders had been passed in the matters strictly falling outside the ambit of the suit or writ
petition and the only and proper forum available in such cases was the Tribunal.
153. More alarmingly, we also observed that some of the suits and petitions were clearly in
violation of the principles set by this Court in the judgment under review. The admission of
these suits and petitions by the learned Judges concerned obviously confront and defy Article
189, if not attract the provisions of Article 209 of the Constitution.
154. Hence, the suits and C.Ps which have been filed by the officers who were de-notified by the
Sindh Government in compliance with the judgment under review, shall stand abated as the
High Court of Sindh lacks the jurisdiction to hear such suits and C.Ps. in view of the bar under
Article 189. However, the plaintiffs or petitioners, whose suits or CPs stand abated by this
judgment can approach this Court, if he has not filed Review Petition earlier.
155. The second category of the Petitions relates to the Civil Servants, who have filed Petitions
or Suits against orders of departmental authorities which have no nexus with the findings of the
judgment under review. The list provided to us by the Registrar reflects that the Civil Servants
have filed as many as 2,278 Constitutional Petitions besides a substantial number of Suits in the
High Court of Sindh in relation to their terms and conditions of service.
156. We direct the Hon'ble Chief Justice of the High Court of Sindh to constitute a Special
Division Bench comprising Senior Judges of the Court to scrutinize the aforesaid Constitutional
Petitions, in the light of the principles enunciated by this Court in these proceedings. In case, the
learned Special Division Bench comes to the conclusion that the subject matter of the
Constitution Petitions relates to the terms and conditions and or the disciplinary proceedings of
the Civil Servants, they shall forthwith remit such Constitutional Petitions to the Sindh Service
Tribunal or the Federal Service Tribunal, as the case may be.
157. Likewise, the Hon'ble Chief Justice of High Court of Sindh shall also constitute a Special
Bench comprising the Senior Judge of the Court, who will examine the nature of Civil Suits filed
by the Civil Servants and transfer them to the Sindh Service Tribunal or the Federal Service
Tribunal, as the case may be, in case such suits pertain to the terms and conditions of their
service including disciplinary proceedings, forthwith under intimation to this Court. The Federal
Service Tribunal or the Sindh Service Tribunal, on receipt of the R&PS of the Constitution
Petitions or Suits, shall treat them as Appeals deemed to have been filed before them on the
date when presented before the High Court of Sindh and decide them in accordance with law.
The question of limitation, if involved, will be considered by the respective Tribunals, in
accordance with law, in the peculiar facts and circumstances of the cases.
158. In the same manner, the Civil Suits filed by the employees of statutory bodies or
Government Servants relating to their terms and conditions of service inclusive of the
disciplinary proceedings, who are serving in the organizations having statutory service Rules,
shall be transferred to be heard by a Division Bench in Constitutional jurisdiction treating them
as Constitutional Petitions for disposal in accordance with law. The Chief Justice of the High
Court of Sindh shall constitute the Special Benches within a week from the date of
communication of this judgment. The Special Benches, as directed above, shall take up the cases
on day to day basis and complete the aforesaid exercise within two months from the date of
constitution of the Benches. The Registrar, High Court of Sindh, shall submit periodic compliance
report after every two weeks for our perusal in Chambers.
159. We, for the aforesaid reasons, dismiss all these review petitions along with the C.M.As
(except the cases dealt with separately in Review Petitions and Civil Suits) in the light of our
findings recorded hereinabove, which are in addition to the findings recorded in the judgment
under review.
160. We direct the Chief Secretary, Sindh, to create surplus pool within the parent department,
of the officers/officials who have been de-notified and create vacancies to accommodate them,
within a period of two months from the date of communication of this judgment. The
officers/officials who have been repatriated to their parent departments shall be entitled to
salaries and other benefits from the date they were relieved to join their parent departments.
Their seniority shall be maintained in their parent departments with their batch-mates, as if they
were never relieved from their parent departments. Expiry of period of lien shall not come in
the way of the officers to deprive them from joining the parent department. In case, if the
parent department has been abolished, the competent authority, shall appoint them by transfer
in terms of Rule 9-A, subject to the restrictions contained therein, in line with the findings
recorded by us in these proceedings. We make it clear to the Sindh Government that if any
other officer, who was covered by the judgment under review or by this judgment, is still
working in Sindh Government in wilful defiance of the judgments, he shall be repatriated and or
transferred to his parent department, post or cadre forthwith. Pendency of proceedings filed by
any such officers/officials who have been ordered to join their parent department or otherwise
continuing in defiance of the judgment of this Court by obtaining any restraining order from any
forum including the High Court of Sindh shall not come in the way of the Sindh Government in
implementing this judgment.
161. The Sindh Government is directed to implement the judgment in letter and spirit. Non-
compliance of any part of this judgment shall expose the Chief Secretary, Sindh, Secretary
Services, Secretary Law, concerned Secretary of the department or any officer found
instrumental in this behalf besides the beneficiary to contempt proceedings. Compliance report
shall be submitted by the Chief Secretary, Sindh through the Registrar of this Court for our
perusal in Chambers, within 15 days from the date of communication of this judgment.
162. By the judgment under review, we had directed the Sindh Government to repatriate the
officers beneficiaries of the legislation, which was struck down by the judgment under review.
We are informed that many Departments of the Federal Government have declined to accept
the officers repatriated by Sindh Government in compliance with the judgment under review.
The Additional Advocate General, who appeared in the Review Petition has brought to our
notice the grievances of the officers, which belong to the Federal Government or to the
institution run under the patronage of Federal Government inter alia, on the ground that their
period of lien with the parent Department has expired and or there was no vacancy to
accommodate them.
163. This Court has already held in the judgment under review that initial order of their transfer
from the parent departments to the Sindh Government was not backed by the mandate given
by the civil servant law, which is promulgated pursuant to Articles 240 and 242 of the
Constitution. Therefore, such orders by the parent Departments are without lawful authority.
Consequently, the expiry of the period of the lien will have no bearing.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the Zarai
Taraqiati Bank Limited
has informed that he
has not joined his duty
in the Bank further
informing that his name
was struck from the
Bank Staff strength with
effect from 13-3-2006
and he ceases to have
any lien in the Bank vide
letter dated 21-11-2006.
The Establishment
Division, vide its letter
dated 31-3-2011,
informed that Ministry
of Water and Power
informed them that he
was working in
Alternative Energy
Board, Ministry of Water
and Power. It was also
informed by the
Ministry of Water and
Power that upon his
appointment as Director
General, Malir
Development Authority,
Local Government
Department Sindh
Karachi, his lien was
terminated on 27-8-
2013 and the
whereabouts of the
officer are not known.
Mr. Atta Muhammad
Panhwar has also
requested Sindh
Government for
correction in the
Notification of his
repatriation indicating
him as an officer of
Malir Development
Authority rather than
Federal Government. He
also filed Suit No.2200
of 2014. The honourable
High Court vide its Order
dated 29-10-2014
suspended operation of
S&GAD's Notification
dated 6-6-2014.
However, In the
meantime, he vide his
application dated 22-11-
2013, requested for
cancellation of
Notification regarding
his absorption in PSS on
the grounds that he was
absorbed before the cut
of date i.e. 1994.
Accordingly, with the
approval of the
Competent Authority
i.e. Chief Minister Sindh,
the Notification of
cancellation of his
absorption was
withdrawn. Disciplinary
proceedings have also
been initiated against
him for causing the loss
to the Government
during his posting in the
Pakistan Steel Mills
Karachi. He has also
retired from
Government service on
attaining the age of
superannuation on 14-3-
2014.
On cancellation of his
absorption, the
Establishment Division,
vide SGA&CD's letter
dated 3-7-2013, was
requested for
honourable retention of
Mr. Talib Hussain Magsi
along with 37 other
officers/officials of
Federal Government
and the Provincial
Governments as well,
whose absorption was
cancelled.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
Government of
Balochistan has been
informed of the
repatriation of the
officer.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that as per
Intelligence Bureau, Mr.
Abdul Wahab Shaikh
Director has joined I.B.
on 16-7-2013 after
repatriation from
Government of Sindh
However, the
Establishment Division
issued notification
whereby pursuant to
the approval of the
Prime Minister, his
services were placed at
the disposal of Sindh
Government vide
notification dated 9-10-
2013.
The Establishment
Division was requested
to modify the above
order and adjust Mr. Ali
Azhar Khan Baloch in his
parent organization i.e.
Steel Mills Corporation,
Ministry of Production,
Government of Pakistan.
He also submitted his
joining report in Sindh
Government and a
Summary for Chief
Minister was floated
apprising the Chief
Minister of the above
position. The Summary
was returned back to
reprocess the case in
the light of
Establishment Division's
Notification dated 9-10-
2013. The Establish-
ment Division however
vide its Notification
dated 27-12-2013
repatriated him to his
parent department i.e.
Pakistan Steel Mills
under Ministry of
Industries and
Production.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
Ministry of Inter
Provincial Coordination,
Pakistan Sports Board is
not aware of his latest
status, further informing
that NOC for his
absorption/appointment
by transfer in Sindh
Government was issued
by them subject to the
condition that no lien
will be kept for the
officer and his name was
struck off from roll of
Pakistan. Sports Board
and as such he ceases to
have any link with the
department since 1995.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
Ministry of Planning
and Development has
informed that the
officer has reported
and joined duties in
the Ministry vide
Notification dated 29-
10-2013.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the case
concerns with the
Government of Punjab
who have already
coordinated with the
Government of Sindh.
Moreover, the
Government of Sindh
vide their letter 12-3-
2014 informed that
the Government of
Punjab has been
informed of the
officer's repatriation.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that as the
Ministry of Food and
Agriculture stood
devolved, the matter
was earlier taken up
with M/O National
Food Security who
informed that none
officers/officials
amongst those
motioned in the list
belong to that
Ministry and regarding
Mr. Siyal they further
informed that he
belonged to Forestry,
the Planning and
Development Project.
Food and Agriculture
Division (Devolved)
and that Forestry is
working under Climate
Change Division,
therefore, they
requested that his
case may be
forwarded to that
Division. Ministry of
Climate Change was
accordingly requested
for status whose reply
is still awaited.
9. Food Department:
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that Ministry
of Industries have, in
reply dated 27-2-2014,
inter alia informed
that on absorption in
Government of Sindh,
the Health
Department her name
was stuck or from
strength of Pakistan
Steel and her lien was
not maintained by
Pakistan Steel and as
such at present she is
not on the roll of
Pakistan Steel.
However, she stands
relieved from Sindh
Government.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that Sui
Southern Gas
Company Limited,
Ministry of Petroleum,
Gas and Natural
Resources have
informed that the
officer has not
reported for duties.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that Ministry
of Water and Power
has been requested
for status regarding
joining back of the
officer. Response is
awaited despite of
issuance of reminders.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that as per
Pakistan. International
Airline Agha Shafique
Ahmed Durrani was
repatriated in PIAC
and subsequently he
was released from
service on account of
his early retirement.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that as
officer was working in
Local Government
Department.
Government of Sindh,
Mr. Irshad Ahmed
Magsi repatriated and
relieved to
immediately report to
his parent
department. Status
has been sought from
ZTBL Government of
Sindh was informed
accordingly of the
position who have
vide their letter dated
12-3-2014 have
advised the officer to
immediately report to
his parent
Ministry/Division/
Organization and
further telling the
officer that in case of
any difficulty to bring
the matter to the
notice of concerned
Ministry Division/
Organization as well as
Secretary
Establishment
Division.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
Ministry of Finance
was requested for
status regarding
joining back of the
officer. In response,
the Ministry has
informed that NBP
was consulted in the
matter which
informed that the
officer was an
employee of NBP and
worked from 26-6-
2006 to 27-6-2007. It
has further been
added that on his
resignation from the
service, he was
relieved from the Bank
accordingly and that
since his relieving on
27-6-2007, he is not
associated with the
bank in any capacity
whatsoever.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that OMG is
being his parent
Cadre, officer's case is
being dealt with OMG
Section, who have
informed E-Wing that
the officer has filed a
Writ Petition in the
honourable High Court
of Sindh requesting to
set aside his
repatriation orders
issued by Government
of Sindh. Moreover,
Government of Sindh
vide their letter dated
12-8-2014 has
confirmed that the
officer has litigated
against withdrawal of
his absorption and the
honourable Sindh High
Court has passed
orders on 24-9-2013
to maintain status quo
and decision is
awaited. The officer
vide his letter dated
24-3-2014 has
informed of above
position i.e. litigation
and vide notification
No.PF.114/93-OMG-II
dated 4-8-2005, he
had severed all
connections with
Office Management
Group.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
parent Department of
Mr. Shahid Hussain
Mahesur i.e.
Intelligence Bureau
has informed that Mr.
Shahid Hussain
Mahesur individually
requested for his
status and he was
informed that NOC
was issued to him for
his absorption with
the Sindh Police
without any lien and
he severs all
connections with the
Intelligence Bureau.
However, he did not
report to Intelligence
Bureau. He has also
filed C.P. No.D-74 of
2011 before the
honourable High Court
of Sindh.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
Ministry of Narcotics
Control has informed
that he has not
contacted reported to
Anti-Narcotics Force.
In pursuance of
directives dated 15-8-
2014 passed by the
honourable Supreme
Court of Pakistan in
Civil Petition No.694-K
of 2013 filed by Mehar
Ali Dayo and with the
approval of the
Competent Authority
i.e. Chief Minister
Sindh, the
Notifications of
withdrawal of
cancellation of
absorption of Mr.
Muhammad Riaz
Soomro was cancelled
withdrawn vide
Notification dated 20-
8-2014 and he stood
relieved to report to
his parent
Department.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
services of Mr.
Muhammad Rizwan
Soomro have been
taken by the National
Accountability Bureau
as informed by the
NAB.
In pursuance of
directives dated 15-8-
2014 passed by the
honourable Supreme
Court of Pakistan in
Civil Petition No.694-K
of 2013 filed by Mehar
Dayo and with the
approval of the
Competent Authority
i.e. Chief Minister
Sindh, the
Notifications of
withdrawal of
cancellation of
absorption of Mr.
Muhammad Rizwan
Soomro was
cancelled/ withdrawn
vide Notification dated
20-8-2014 and he
stood relieved to
report to his parent
Department.
The Establishment
Division, vide its letter
dated 31-3-2014,
Informed that the case
concerns Government
of Ba1ochistan who
vide their letter dated
12-3-2014 has
informed that the
Government of
Balochistan have been
informed of officer's
repatriation.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
services of Mr. Zameer
Ahmed Abbasi have
been taken by the
National
Accountability Bureau
as informed by the
NAB.
In pursuance of
directives dated 15-8-
2014 passed by the
honourable Supreme
Court of Pakistan in
Civil Petition No.694-K
of 2013 filed by Mehar
Ali Dayo and with the
approval of the
Competent Authority
i.e. Chief Minister
Sindh, the
Notifications of
withdrawal of
cancellation of
absorption of Mr.
Zameer Ahmed Abbasi
was cancelled/
withdrawn vide
Notification dated 20-
8-2014 and he stood
relieved to report to
his parent
Department.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that NADRA
informed that at the
time of his absorption
in Sindh Police his lien
was not marked and
his name was stuck off
the strength of NADRA
further adding that he
is no more employee
of NADRA and thus his
reversion cannot be
entertained at this
stage.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the case
concerns Government
of Balochistan who
vide their letter dated
12-3-2011 have
informed that the
Government of
Balochistan has been
informed of officers
repatriation.
The Establishment
Division, vide its letter
dated 31-3-2013,
informed that the case
concerns Government
of Balochistan who
vide their letter dated
12-3-2014 has
informed that the
Government of
Balochistan has been
informed of officer's
repatriation.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
officer reported for
joining at Intelligence
Bureau. The
Intelligence Bureau
informed the officer
that NOC was issued
to him for his
absorption the Sindh
Police without any lien
and he severs all
connections with the
Intelligence Bureau.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
letter seeking status
issued to Ministry of
Interior. Reminders
issued. Response
awaited.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
letter seeking status
issued to Ministry of
Interior. Reminders
issued. Response
awaited.
The Establishment
Division, vide its letter
dated 31-3-2014,
informed that the
letter has been issued
to M/O Finance to
obtain status
regarding joining back
of the officer.
Government of Sindh
vide letter dated 12-3-
2014 informed that
the officer has filed
C.P. No.D-3255 of
2013 before the
honourable High Court
of Sindh Karachi and
decision is awaited.
165. We, in the peculiar circumstances of the matter, direct the aforesaid officers to report to
the Secretary Establishment Division, Islamabad, within 15 days from the date of this judgment.
The Secretary Establishment shall create a Devolution Cell in the respective parent Departments
and, on availability of the vacancy in the parent Departments, they will be posted. In case, the
Department of the Federal Government and or the Organization to which the officer belongs has
been devolved, the Secretary Establishment shall post them in terms of section 11-A of the Civil
Servants Act to another Department in conformity with the scheme of the Civil Servants Act. All
these officers shall be entitled to their salaries and other perks from the date they were relieved
from Sindh Government. They will also be entitled to their inter-se seniority and promotion,
subject to the Rules, with their batchmates as if they were never relieved from their parent
Departments.
166. The Attorney-General for Pakistan shall keep in touch with the Secretary Establishment and
ensure that this part of the judgment is implemented in the above terms. The Attorney General
shall report compliance within two months from the date of communication of the judgment.
167. One of the petitioners, Tariq Mughal, had filed Criminal Review Petition No.81 of 2013,
challenging the judgment under review. The Petition was heard on 21-10-2014 and judgment
reserved, along with the other Review Petitions. On 12-11-2014 he made a Criminal
Miscellaneous Application No.Nil/2014 for withdrawal of his Criminal Review Petition No.81 of
2013. Once his Criminal Review Petition was heard at length by us in Court, there was no
occasion to seek withdrawal of the Petition without any justification. We, in the peculiar
circumstances declined the request of the petitioner Tariq Mughal for withdrawal of his Criminal
Review Petition No.81 of 2013.
168. On receipt of the application for withdrawal of Civil Review Petition by Tariq Mughal, we
had asked the Additional Advocate General Sindh to confirm as to whether Tariq Mughal was
repatriated to his parent Department on issuance of the notification. In response, we received a
brief note from S&GAD containing service profile of Tariq Mughal, which reflects that originally
he was an Engineer (Mechanical) in BS-17 in Port Qasim and transferred on deputation to the
Sindh Unified Grade Service for 3 years. During his period of deputation, on 1-10-2011, he was
absorbed in the Sindh Unified Grade Service. On 2-7-2013, the Sindh Government issued
notification in compliance with the judgment under review withdrawing his absorption. Instead
of repatriating him to the Port Qasim Authority, the Secretary Local Government Department
had placed his services in the surplus pool of Local Government and, subsequently, he was
posted in Sindh Local Government Department.
169. When this Court enquired about the status of the petitioner, the Local Government
Department issued notification on 15-11-2014, repatriating him to his parent Department i.e.
Port Qasim Authority.
170. After perusal of the brief note of the S&GAD, we are of the view that the petitioner Tariq
Mughal had wrongly continued in the Sindh Local Government Department in connivance with
the high ups of the Sindh Government. It appears to be an alarming situation, where the
Secretary, Sindh Local Government Department has wilfully defied the judgment of this Court by
placing the services of Tariq Mughal in the surplus pool of the Sindh Local Government
Department. Tariq Mughal was required to report to his parent Department which he wilfully
avoided.
171. We, accordingly, direct the Sindh Government to ensure that Tariq Mughal stands relieved
forthwith to join his parent Department. We restrain ourselves from initiating contempt
proceedings against Tariq Mughal and the then Secretary Local Government, who were in
league to defeat the findings of this Court which resulted in his repatriation. The Chief Secretary
Sindh shall submit a compliance report within 15 days from the date of communication of the
judgment. The application for withdrawal of the Criminal Review tainted with malice, is
dismissed along with the Review Petition for the reasons already detailed in the judgment under
review. The Chairman, Port Qasim Authority shall allow joining to Tariq Mughal, and expiry of
lien period will not come in his way. The petitioner, however, shall also be entitled to inter se
seniority with his batchmates as if he was never relieved from the Port Qasim Authority.
Criminal Review Petition No.38 of 2014 (Mrs. Asma Shahid Siddiqui, in person)
172. The petitioner, in person, submitted that she was serving in the Forest Department,
Government of Punjab as Forest Ranger in BS-16 on regular basis. On 11-2-1997, her services
were transferred to the Forest Department, Sindh Government, in the same grade while placing
her seniority at the bottom. She was posted as Forest Officer in BS-16 in the Department with
the consent of both the Provincial Governments and subsequently, she was absorbed in the
Sindh Province in terms of the provisions of Sl. No.4 of the ESTA CODE which deal with the
wedlock policy. Her absorption in Sindh Forest Department was made in conformity with section
24 of the Act read with Rule 9-A of the Rules of 1974. The petitioner has stated that she had
been serving as District Forest Officer in the Province of Sindh for the last 17 years and she was
repatriated to the Province of Punjab in compliance with the judgment under review.
173. In the peculiar circumstances of the case, we are of the considered view that her case is an
exception to the findings recorded by us in the judgment under review as she was transferred
and absorbed in terms of the provisions of ESTA CODE on the basis of wedlock policy, in the
same Basic Scale and Department in Sindh, in which she was serving in the Province of Punjab
since 1997. Therefore, she was wrongly de-notified. We, accordingly, direct the Chief Secretary,
Sindh to immediately withdraw the notification of her repatriation and restore her posting to
her original position in the Province of Sindh as if she was never repatriated. She shall be given
all the salaries and perks of the intervening period. The compliance report shall be submitted by
the Chief Secretary, Government of Sindh, which shall be placed for our perusal in Chambers
within two weeks from the judgment.
174. For the aforesaid reasons, the Criminal Review Petition No.38 of 2014, is allowed in the
above terms.
Criminal R.P. No.79 of 2013 (Syed Shakir Hussain v. Province of Sindh etc.)
175. The learned counsel for the petitioner contended that in pursuance of the judgment under
review, out of turn promotion of the petitioner was withdrawn. However, while withdrawing his
out of turn promotion, the Competent Authority has fixed his seniority below his batchmates as
most of them, who were junior to him, were promoted in the intervening period. This is not the
spirit of the judgment under review. We, accordingly, direct the Chief Secretary, Government of
Sindh to ensure that the seniority of the petitioner is fixed with his batchmates, in the same
order as if he was never given out of turn promotion, and if his batch mates were promoted in
the intervening period, he shall also be promoted with them, maintaining his original inter se
seniority. The matter shall be resolved by the Chief Secretary or by the Competent Authority
within two weeks of this judgment and the petitioner shall be entitled to all his perks and salary
benefits along with the difference, if any, from the date of his de-notification till fixation of his
seniority.
176. The Criminal Review Petition No.79 of 2013, filed by the petitioner is allowed in the above
terms. The Chief Secretary shall submit compliance report within two weeks from the date of
communication of this judgment, for our perusal in Chambers.
177. The petitioner Jaffar Abbasi was de-notified and reverted back to his parent department by
the Sindh Government in compliance with the judgment under review, as he was absorbed in
the Provincial Secretariat Service from Public Service Commission Department. He filed the
Review Petition, which was argued by his Counsel, Mr. Tariq Mehmood on 10-6-2014 and was
reserved for judgment.
178. In September 2014, when the other Review Petitions were taken up for hearing, the
petitioner's Counsel sought withdrawal of his Review Petition on the ground that he has filed a
Constitution Petition before the High Court of Sindh and has obtained an interim order. This
information was shocking for us. We declined the request of the learned Advocate Supreme
Court for withdrawal of the Review Petition and directed the Registrar High Court of Sindh to
send us the R&Ps of the Constitution Petition filed by the petitioner.
179. On perusal of the R&Ps, we had noticed that on 1-7-2013, the petitioner filed a Constitution
Petition No. D-2817 of 2013 before the High Court of Sindh, on the same subject which was
pending in C.R.P. No.71 of 2013. On 3-7-2013 the Petition was fixed before a Division Bench
No.V, headed by Mr. Justice Syed Hasan Azhar Rizvi, which Bench passed the following order:--
"(1) Granted
(3) & (4) It is stated by the learned counsel that the petitioner is not a deputationist and
is working in the department which has been assigned to him after passing the
competitive examination. He states that under the garb of the judgment given by the
Honourable Supreme Court of Pakistan, he is now being transferred from his
department. He states that the respondents may be directed to follow and interpret the
judgment of the Honourable Supreme Court dated 12-6-2013 in its letter and spirit
which is not being complied with by them. Let notice be issued in this regard to the
respondents as well as A.G. for 6-8-2013."
180. The Order Sheet shows that the matter was fixed on 6-8-2013, when the Board was
discharged. On 8-8-2014, the Office fixed the matter on 25-9-2014. However, on 11-9-2014, an
application for urgent hearing was allowed by the Division Bench No.V and the matter was taken
up in Court on the same day. The Division Bench comprising Justice Syed Hasan Azhar Rizvi and
Justice Aziz-ur-Rehman, suspended the notification, issued by the Sindh Government in
compliance with the judgment under review, while passing the following order without hearing
the Advocate General, Sindh, who was on notice:--
181. The High Court of Sindh was not competent to entertain the Constitution Petition of the
petitioner under Article 199 of the Constitution, as the petitioner was seeking suspension of the
notification issued by the Sindh Government in compliance with the judgment of this Court. The
High Court of Sindh cannot sit in appeal against the findings recorded by this Court, in defiance
of the mandate of Article 189 of the Constitution. Besides, the petitioner has already filed a
Review Petition in this Court for remedy of his grievance, which was heard on 10-6-2014 and the
judgment was reserved. The jurisdiction of High Court of Sindh is otherwise ousted by the bar of
Article 212 of the Constitution.
182. We have noticed that the High Court of Sindh, while overlooking the mandates of Articles
189 and 212 of the Constitution, has started entertaining Petitions under Article 199 of the
Constitution filed by Civil Servants which has paralyzed the Service Tribunals. In order to
comprehend the true picture, we have called for the R&P of the Constitution Petition No. 2817
of 2013 filed by the petitioner. We had noticed that the petitioner, after the judgment in Review
Petition was reserved in June 2014, had filed the Petition before the High Court of Sindh and
obtained interim order, with the sole object to defeat the judgment of this Court. His case of
erroneous absorption in Provincial Secretariat Service is fully covered by the findings recorded
by this Court in the judgment under review. The petitioner, being an Officer of the Public Service
Commission, was wrongly absorbed in the Provincial Secretariat Service, which is a distinct
specie of service and has its independent recruitment Rules and Service Structure. The
petitioner was not eligible to be appointed by transfer under Rule 9(1) of the Rules of 1974 and
was erroneously absorbed in the Provincial Secretariat Service, which service could only be
joined after qualifying the required competitive examination. The Civil Servants Act and Rules
framed thereunder do not permit such absorption. We, for the reasons already recorded by us
in our impugned judgment, dismiss the Civil Review Petition, holding that the petitioner was
rightly de-notified by the Sindh Government in compliance with the judgment under review.
Consequently the Constitution Petition No.D-2817 of 2013 stands abated.
183. The petitioner's conduct of approaching High Court of Sindh, during the pendency of his
Review Petition, prima facie, amounts to contempt of the authority of this Court. We,
accordingly direct the Office to issue Show Cause notice to the petitioner under Article 204 read
with section 17(1) of the Contempt of Court Ordinance 2003, calling upon him to submit his
explanation as to why he should not be proceeded against for wilfully defying and defeating the
judgment of this Court dated 12-6-2013, by filing the Constitution Petition No.2817 of 2013, in
the High Court of Sindh on the same subject and obtaining the restraining order, after availing
the remedy of Review Petition. The Office shall make a separate file of the proposed Criminal
proceedings by assigning number.
Criminal R.P. No.80 OF 2014 (Mirza Shahbaz Mughal v. Province of Sindh etc.)
184. Through these proceedings, the learned Advocate Supreme Court Mr. Abid Zuberi has
prayed that the proceedings in Suit No.102 of 2013 filed by the petitioner before the learned
High Court of Sindh be allowed to continue. He has sought expungment of the remarks passed
by this Court against the petitioner in the judgment under review.
185. On 1-2-2013, the petitioner had filed Civil Suit No.102 of 2013 in the High Court of Sindh
against the Sindh Government and its officials for "Declaration and Permanent Injunction" with
the following prayers:--
"PRAYER
It is, therefore, prayed that this Hon'ble Court may be pleased to pass judgment and decree in
favour of the Plaintiff as under:
A. Declare that the Notification dated 13-1-2012 issued by defendant No.1 withdrawing
the name of the plaintiff from the Notification dated 3-09-2012 is in accordance with
law.
B. Declare that the Impugned Letter dated 28-1-2012 issued by the defendant No.2 is
illegal, mala fide, without jurisdiction, unwarranted in law and fact as well as in violation
of principles of Natural Justice.
C. Suspend the Impugned Letter dated 28-1-2012 issued by the defendant No.2.
F. Grant any other relief deemed just and appropriate in the circumstances of the case.
186. Along with the Suit, an application under Order XXXIX, Rules 1 and 2, C.P.C. was also filed
and on 4-2-2013, a State Counsel appeared on behalf of the Sindh Government and sought time.
The learned High Court passed status quo order, which continued. On 15-5-2013, the petitioner
made three Miscellaneous Applications, one application for urgent fixation of the matter,
second application for suspension of the Notification dated 7-5-2013, by which the petitioner's
earlier Notification dated 14-3-2013 for appointment as DSP in Sindh Police was withdrawn, and
third application was under Order XXXIX, Rule 2(3), C.P.C., seeking initiation of contempt
proceedings against the defendant Additional Chief Secretary (Home Department) for wilful
disobedience of the 'status quo' order of the Court.
187. The learned High Court on 16-5-2013, allowed the urgency application and, while issuing
notices in the other two applications, suspended the Notification dated 7-5-2013 of the
Additional Chief Secretary (Home Department).
188. The background of the notification of 7-5-2013 of the Sindh Government was that during
the hearing of the arguments in C.P. No.71 of 2011 and other Petitions in Criminal Original
Petition No.89-K of 2011, two C.M.As. numbered as 245/2013 and 247/2013 were filed,
complaining that the Sindh Government had appointed 10 D.S.Ps. without observing requisite
Codal formalities. On 6-5-2013, this Court enquired from the Additional Advocate General Sindh,
representing the Sindh Government, to satisfy the Court as to how the Sindh Government could
appoint D.S.Ps. without recourse to the procedure prescribed under the service law. The
Additional Advocate General sought time for instructions and on the following day, he made a
statement that all the D.S.Ps. appointed directly, including the petitioner, have been de-notified
by notification dated 7-5-2013.
189. The petitioner challenged the notification dated 7-5-2013 in the said civil suit and obtained
a restraining order, enlarging the scope of the suit. On the date when the notification dated 7-5-
2013 was placed before us, we were not informed that a suit was filed by the petitioner.
However, a complaint was sent to this Court that inspite of the Notification dated 7-5-2013, the
petitioner is continuing as DSP on the basis of an order in the Suit No. 102 of 2013, and
therefore, R&Ps of the said Suit was called.
190. After perusal of the R&Ps, we in paras 177 to 181 of the judgment under review had taken
note of the conduct of the petitioner who was wilfully defeating the orders of this Court passed
at times. We, therefore, directed the learned High Court of Sindh to dispose of the suit on the
basis of the findings recorded by us in the judgment under Review. This has not been done by
the learned High Court of Sindh, though the impugned judgment was circulated amongst the
Judges of the Court through the Chief Justice.
191. It is contended by Mr. Abid S. Zubair, Advocate Supreme Court that the petitioner was
lawfully appointed as DSP and the judgment under review does not cover the case of the
petitioner. He prayed that the suit filed by the petitioner before the High Court of Sindh be
allowed to continue and its maintainability be determined by the said Court. We inquired from
the learned counsel to satisfy us as to how a Civil Servant can file a Suit relating to the terms and
conditions of his service. We further asked to satisfy us as to how the petitioner was granted
back dated seniority and out of turn promotion. He could not offer any plausible explanation to
the queries. We have perused the service profile of the petitioner provided by the S&GAD.
192. We have noticed that the petitioner was appointed as ASI on 29-1-1996 in Larkana (Range)
under the Police Rules, 1934, as a Probationer. He was confirmed as A.S.I. He was promoted to
the rank of Sub-Inspector on 17-12-2001 and was confirmed as such on 18-12-2003. He was
extended undue favours and appointed by promotion as Inspector on 26-4-2004 on ad hoc basis
with the rider that he will not claim seniority over his seniors, and will retain his original
seniority in the promotion list. The order of his promotion further qualifies that his promotion
will be regularized on his turn along with his batch mates.
193. A further favour was extended to the petitioner on 18-2-2009, when the then CCPO Karachi
recommended to post him as DSP on his own pay and scale which recommendation was
accepted on 20-5-2009. The grounds recommending the petitioner for out of turn promotion
were illegal and untenable in law. We have gone through the Minutes of the Committee,
recommending the appointment of the petitioner on OPS as DSP, reproduced herein below:--
"The committee has examined the record as well as comments furnished by the then
Capital City Police Officer, Karachi under his office letter No. CCPO/KHI/E.I/93359 dated
10-8-2010. The committee has also observed that the performance of Mirza Shahbaz
Mughal while working as PSO to CCPO, Karachi on officiating basis, on law and order
situation in Karachi, have full grasp over his duties, which facilitated to achieve disposal
of pending and complicated cases even holidays, which can be termed outstanding for
his exceptional performance.
He not only performed superb in reorganization of office. He has excellent analytical skills with
capacity to plan, organize and executive his plan, which help full to CCPO Karachi in public
dealing for their problems and pursue for its redressal.
Besides above, in the following filed assignments, his performance remained excellent and up to
the mark:
(2) As SHO Police Station Gulistan-e-Johar on 29-6-2004, near Safoora Chowk arrested 2
suspicious along with motorcycle and recovered one pistol .30 bore loaded and looted
booty Rs.3,510 (F.I.R. No.117/2004 under sections 353/324/34, P.P.C.).
The officer was recommended for promotion to the next higher rank in recognition of his
excellent performance in arrest of notorious street criminals, number of gun runners, during
peddlers to traffickers along with recoveries and lodged F.I.Rs., however, after due consideration
he was promoted as DSP on officiating basis. He is working as DSP since last more than 21
months.
In view of the above the committee has recommended that the request of Mrs. Zahida Sarwar
for placing the name of Mirza Shahbaz Mughal in the seniority list of DSPs of Sindh Police, may
be allowed and matter may be referred to competent authority for regularization of Mirza
Shahbaz Mughal as DSP."
194. The undue favours extended to the petitioner-Sub Inspector, in an unprecedented manner
on the aforesaid grounds, could hardly be construed valid to excel his rank to that of a DSP. It is
the duty of a Police Officer to arrest culprits and bring them to book. These acts of the
petitioner, in no way, could be construed as gallantry act beyond the call of duty of a Police
Officer. What was more surprising was that the Committee, on the aforesaid grounds, had
recommended the petitioner for his regularization in the rank of D.S.P. through the then I.-G.
Police and the then Additional Chief Secretary, who endorsed these recommendations. The
regularization of the petitioner as D.S.P., was treated as a fresh appointment on regular basis in
order to save his appointment as D.S.P against the law enunciated by this Court in an
unprecedented manner, which we believe, has never happened before in Police Force.
195. The petitioner was placed at Sl.No.283 in the seniority list of the Sub-Inspectors. It is
claimed that his appointment as DSP was regularized in exercise of powers conferred under
section 24 of the Act read with Rule 19 of the Rules of 1974. The competent authority can
neither appoint nor regularize the services of the petitioner under section 24 of the Act, which is
an enabling provision and does not confer authority on the competent Authority to pass such
orders to the disadvantage of other Civil Servants. We would be dealing with the scope of
section 24 of the Act separately. Appointment of a Civil Servant is provided under section 5,
subject to the prescribed manner, which requires that any officer in BS-17 can only be appointed
on the recommendation of the Public Service Commission, which, after advertising the post,
takes examination of the candidates and declares their results on merit. The powers under
Section 24 of the Act cannot circumvent the mandate for appointment of a Civil Servant as
provided by the Articles 240 and 242 of the Constitution. Reference to Rule 19 of the Rules of
1974 is also alien to the case of the petitioner. The powers under Rule 19 could only be
exercised in the public interest, in exigencies and pending nomination of a candidate by the
Commission with the qualification that such powers are subject to the procedure laid down by
Part-III of the initial appointment under the Rules of 1974.
196. We have failed to understand as to how the petitioner, through such unwarranted means,
can continue in the Police Force as D.S.P. The petitioner, at no point of time, was ever confirmed
in the rank of Inspector, therefore he could not have been appointed on OPS as DSP nor could
his services be regularized unless he was a confirmed Inspector or had served for five years in
order to qualify to be considered for promotion to the post of DSP. Under the Civil Servants Act,
seniority of the police officers is reckoned from the date of their regularization, as provided
under section 8(4) of the Civil Servants Act. Since the petitioner was never promoted on his turn
as Inspector, nor was confirmed in the rank of Inspector and his batch mates are still serving as
Sub-Inspectors, therefore, he cannot be regularized as DSP nor his regularization can be treated
as fresh appointment as DSP.
197. The procedure for appointment to the post of DSP has two modes (i) by promotion, where
an Inspector confirmed in his substantive rank has served for five years and is otherwise senior
amongst his batch mates, or (ii) by initial recruitment, as prescribed by the Rules. The petitioner
is not covered by this mode as he does not qualify the ternural limitation prescribed for
promotion. By Act No. XI of 1989, the Sindh Assembly has created 'Sindh Public Service
Commission' and under section 10 of the said Act, the Sindh Government has framed the Rules
calls "Sindh Public Service Commission (Functions) Rules 1990" [hereinafter referred to as "the
Rules 1990"]. In terms of Rule 3(1)(i) it is provided that all civil posts connected with the affairs
of the Province in Basic Pay Scale 16 to 22, except those specified in the schedule, shall be filled
by the Sindh Public Service Commission through competitive process. Such posts are required to
be advertised publically. In the case in hand, this mandatory mode, required under the rules,
was not followed while notifying the petitioner as a fresh appointee, who was already in police
service in the rank of Sub-Inspector. The case of the petitioner is fully covered by our judgment
under review as he was given out of turn promotion and was given back dated seniority and his
regularization or adjustment as DSP was not backed by any law which could confer power on the
Competent Authority to treat him as a fresh appointee. The competent Authority shall forthwith
post him as Sub-Inspector.
198. We may observe that on 6-5-2013, two C.M.As. numbered as 245/2013 and 247/2013,
containing list of other nine persons who were also appointed as D.S.P. without recourse to the
provisions contained in the Rules, 1974, along with the petitioner, were filed. The said Rules
require that a post of BS-17 can only be filled through Public Service Commission after
advertisement. The Sindh Government and or the Competent Authority cannot bypass this
mandatory requirement and substitute a parallel mechanism to appoint a person in BS.16 to 22
against the language of these Rules, which are framed under the dictates of the Act as
mandated under Article 240 of the Constitution. The Article 242 of the Constitution provides the
mechanism for appointment of a Civil Servant through Public Service Commission. This Article is
safety valve which ensures the transparent process of induction in the Civil Service. It provides
appointment by Public Service Commission with the sole object that meritorious candidates join
Civil Service. The Sindh Government through executive or legislative instruments can not
withdrawn any post from the purview of the Public Service Commission as has been done in the
case of the DSPs, in negation to the command of Article 242 of the Constitution. For the
aforesaid reasons, we hold that the Sindh Government shall make all the appointments in BS 16
to 22 through Public Service Commission.
199. We, for the aforesaid reasons, hold that the petitioner was rightly reverted to the rank of
Sub-Inspector in terms of the letter of Dr. Muhammad Amin Yousuf Zai DIG (Establishment). The
Competent Authority shall fix the inter-se seniority of the petitioner with his batchmates. The
petitioner shall restore all the benefits including salaries drawn by him as DSP to the Sindh
Government from the date of the judgment under review. The concerned Department shall
deduct and/or adjust the aforesaid benefits in installments from his future salary within a span
of 3 years and report compliance.
200. The petitioner shall be issued a Show Cause Notice under section 17(1) of the Contempt of
Court Ordinance 2003, read with Article 204 of the Constitution, calling upon him to furnish
explanation as to why contempt proceedings should not be initiated against him for wilful
defiance of the orders dated 30-8-2012 and 7-5-2013, besides the impugned judgment. The
office shall make a separate file of the proposed contempt proceedings by assigning it a
separate number. This Review Petition is dismissed with costs. The suit of the petitioner stands
abated being barred not only under Article 212 of the Constitution, but also under Article 189.
201. We must record our displeasure over the officers, who were instrumental in extending
undue favours to the petitioner. We direct the competent Authority to initiate departmental
proceedings against the then CCPO Karachi, the then Additional Chief Secretary Sindh and
members of the Committee, who recommended the petitioner for appointment as DSP, and
report compliance within two weeks for our perusal in Chambers.
202. The petitioner's Counsel, Mr. Tariq Mehmood, has contended that the petitioner was
appointed as Assistant Executive Engineer (AEE) in BS-17 in Karachi Water and Sewerage Board
(KW&SB) whereas one Muhammad Harris was appointed as AEE in BS-17 in the Communication
and Works (C&W) Department. The petitioner and Muhammad Harris applied for mutual
transfer. On 12-6-1995, their application for mutual transfer was allowed. Thereafter, on
application of Muhammad Harris, he was absorbed in KW&SB, whereas the petitioner was
absorbed in C&W Department. The petitioner was not a Civil Servant and therefore, he could
not have been transferred and absorbed in C&W Department either under section 24 of the Civil
Servants Act or under Rule 9(1) of the Rules 1974.
203. It is settled law that a non-Civil Servant cannot be conferred the status of a Civil Servant,
which the petitioner has acquired by absorption in C&W Department. Therefore, the petitioner
was rightly de-notified. Consequent upon the detailed reasons given in the judgment under
review, the absorption of the petitioner in the C&W Department, was un-warranted. This Civil
Petition, for the aforesaid reasons, merits dismissal. The petitioner shall immediately join his
parent Department i.e. KW&SB and Muhammad Harris shall be reverted back to his parent
department i.e. C&W Department. The petitioner as well as Muhammad Harris shall be entitled
to their inter se seniority with their batchmates from the date on which they were transferred
from their parent Departments.
Criminal R.P. 40 of 2014 (Ata Muhammad Memon v. Chief Secy. Govt. of Sindh)
204. The petitioner, in person, contended that on 4-8-1987, he was appointed as Assistant
Engineer in KDA on temporary basis. On 27-4-1989, he was transferred on mutual basis to Public
Health Engineering and was posted in Hyderabad, where he was working till he was de-notified
in compliance with the judgment under review. The petitioner stated that after his de-
notification he had joined KMC as the KDA, which was his parent department, had devolved. He
submitted that he had not been allowed to join, inter alia, on the ground that the judgment
under review does not cover his case.
205. We have laid down the principles which covers the case of the petitioner. The absorption of
the petitioner in the Public Health Engineering, was un-warranted. Therefore, we direct the
Chief Secretary Sindh, to create a surplus pool in KMC and the petitioner shall be posted in the
pool till he is posted against a vacancy in the Department. He would be entitled to his inter se
seniority with his batchmates with whom he was working in KDA at the relevant time before his
absorption to the Public Health Engineering. The petitioner shall be given salary from the date
he was de-notified, within 15 days from the date of communication of this judgment. At the
same time the Officer with whom he was mutually transferred, shall be reverted back to his
parent Department with the same benefits as detailed above. The Chief Secretary Sindh shall
submit compliance report for our perusal in Chambers. The Review Petition is disposed of in
above terms.
Criminal R.P. No.41 of 2014 (Ali Murad Abro v. Chief Secy. Govt. of Sindh)
206. The petitioner, in person, stated that he was appointed on 28-7-1987, as Assistant Engineer
BS-17 in the KDA on permanent basis. On 26-2-1995, he was mutually transferred to C&W
Department on a joint application, with Muhammad Ameer, who was also Assistant Engineer in
BS-17 in the C&W Department. After the judgment under review, he was de-notified and sent
back to the Local Government Department and since then he has not been given posting. He has
stated that Muhammad Ameer, who was mutually transferred with him, has also not been
repatriated to the C&W Department in compliance with the judgment.
207. The Chief Secretary Sindh is directed to ensure that the judgment of this Court is
implemented in letter and spirit and the petitioner and Muhammad Ameer are transferred
forthwith to their respective parent Departments. They would be entitled to their salaries from
the date of their de-notification as well as their inter se seniority with their batchmates from the
date of their mutual transfer. The Review Petition is disposed of in above terms. The Chief
Secretary shall report compliance within 15 days from the date of communication of judgment.
208. The learned counsel for the petitioner contends that the petitioner originally was an Officer
in the Local Government Department, Balochsitan, and was promoted to BS-18. He claims that
the petitioner's son was attacked and was moved to Agha Khan Hospital, Karachi, for medical
treatment. He applied for his transfer to Sindh Government on humanitarian ground. It is
claimed that under section 10 of the Balochistan Civil Servants Act, he was transferred to Sindh
Government and on 5-10-2010 he was appointed as Director Food on deputation. On 3-9-2010,
the Chief Minister Sindh, in exercise of powers under section 24 of the Act of 1973, on an
application by the petitioner, who was on deputation, absorbed him in the Sindh Government in
Ex-PCS cadre. After the judgment under review, the petitioner was de-notified by the Sindh
Government and was ordered to be repatriated to Balochistan.
209. We have dealt with the issue of absorption of a Civil Servant. The petitioner hails from
Balochistan. The Chief Minister, Sindh cannot order absorption of any Civil Servant of a different
Province who is on deputation to Sindh Government. Section 24 of the Act or Rule 9(1) of the
Rules of 1974, cannot be resorted to for appointment by transfer of a Civil Servant who does not
belong to the Sindh Government. The petitioner could neither have been transferred
permanently to the Sindh Government, nor could he be absorbed in Ex-PCS cadre for the
reasons given in the impugned judgment. The petitioner did not have the status of a Civil
Servant while serving on deputation in Sindh Government nor could he continue on deputation
for an indefinite period. His absorption in Ex-PCS cadre was contrary to the language of section 5
of the Act, which does not authorize the Chief Minister to appoint the petitioner by offending
the Rules of 1974.
210. We, for the aforesaid reasons, do not find any merit in the Review Petition which is
accordingly dismissed. Pendency of any proceedings of the petitioner before any forum will not
come in the way of Sindh Government in repatriating the petitioner to the Province of
Balochistan.
211. The petitioners claim to have been nominated by the Chief Minister as Assistant
Commissioners under Rule 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules,
1964. The grievance of the petitioners is that on account of paras 102 to 111 of the judgment
under review, their nominations were withdrawn and they were reverted back to their parent
Departments. We have already dealt with this issue in the aforesaid paras. During the hearing of
the Review Petition, we have noticed that no mechanism has been provided for nomination of
the officers. It is the sole discretion of the Chief Minister to recruit/nominate an employee to
the post of Assistant Commissioner in exercise of powers under Rule 5(4)(b) of the Rules of
1964. The discretion to exercise the powers needs to be structured by framing policy, which
should encourage merit. On query from the learned Additional Advocate General, Sindh as to
how the employees are chosen from different Departments for nomination as Assistant
Commissioners; he, on instructions, informed the Bench that no policy has been framed and it is
the sole discretion of the Chief Minster. These Rules are not meant to ignore transparency in
nomination as such appointments are made by bypassing the regular procedure provided for
appointment of a Civil Servant in BS-17. We have noticed that most of these appointments were
made amongst the employees, who have been excluded from the purview of the Public Service
Commission. Therefore, in absence of policy for nomination to the post of Assistant
Commissioner, blue eyed of the high ups will get these jobs. We, therefore, direct the Sindh
Government to frame a transparent policy for nomination of these officials, which could ensure
that meritorious employees of the Departments mentioned in the Rules of 1964, could be
nominated on merits, after proper scrutiny.
212. The petitioners were found in excess of the quota as per the list provided to us by the Sindh
Government and, therefore, for the reasons already recorded by us in the judgment under
review, they were not entitled to continue in their Offices. These Review Petitions having no
merit are, accordingly, dismissed.
C.M.A. No.4568 of 2013 in C.R.P.No.Nil of 2013. (Rafique Ahmed Abbasi v. Chief Secy.
Govt. of Sindh)
213. The petitioner, through these proceedings, seek review of the judgment, inter alia, on the
ground that he was lawfully granted out of turn promotion and after the judgment under review
of this Court, he was reverted to the rank of Inspector though his batchmates had been
extended favours and their seniority was fixed one step higher than the petitioner. The issue of
out of turn promotion, which has been declared unconstitutional, cannot be allowed to be
reopened. However, the grievance of the petitioner in regard to his seniority can be examined
by the Sindh Service Tribunal.
214. Therefore, in order to meet the ends of justice, we remand this case to the Sindh Service
Tribunal, which shall treat this Review Petition as Service Appeal and shall decide the same in
accordance with law, in line with the principles laid down in this judgment and the judgment
under review. The petitioner shall be at liberty to amend the proposed Appeal appropriately, if
so advised. The Tribunal shall, after issuance of notice to the petitioner and his other batch-
mates, determine their seniority in accordance with law. This Review Petition is disposed of in
the above terms.
SUIT NO. 1029 OF 2014 (Muhammad Ali Baloch v. Province of Sindh etc.)
215. During the hearing of the Criminal Review Petition filed by the Sindh Government as well as
by the beneficiaries, we directed the Sindh Government to provide us the list of the
beneficiaries who had obtained restraining orders against the notification issued by the Sindh
Government in compliance with the judgment under review.
216. The Sindh Government provided us the list of the Civil Suits and the Constitution Petitions
filed by the petitioners and many other Civil Servants, challenging the notification of the Sindh
Government dated 2-7-2013, issued in compliance with the judgment under review.
217. We were sent the list by the Sindh Government in which Suit No. 1029 of 2014, filed by
Muhammad Ali Baloch was also mentioned. The plaintiff Muhammad Ali Baloch had obtained
restraining order by seeking suspension of the notification dated 2-7-2013 of the Sindh
Government. We may observe that Muhammad Ali Baloch was repatriated to his original post of
Assistant Director (Computer Branch) on declaration that he was wrongly absorbed in the
regular Police Force.
218. This Notification dated 2-7-2013 was challenged by him by way of Departmental Appeal
(Representation) in terms of section 23 of the Sindh Civil Servants Act and, subsequently, in
Appeal No. 144 of 2013, before the Sindh Service Tribunal. The Service Tribunal, after hearing
the parties, held that the judgment under review was fully applicable to the case of Muhammad
Ali Baloch and his absorption in the regular Police Force was found to be unwarranted. Against
this judgment, a Civil Petition for leave to Appeal No. 74-K of 2014 was filed by Muhammad Ali
Baloch before this Court, which was fixed before a three member Bench at Karachi, and one of
us (Justice Amir Hani Muslim) was heading the Bench. On 25-2-2014, the matter was fixed
before the Bench at Karachi Registry. The Counsel of Muhammad Ali Baloch, Dr. Farough
Naseem, after arguing the matter at some length, withdrew the Appeal on instructions of
Muhammad Ali Baloch, who was present in Court. On withdrawal of the Appeal, the judgment
of the Service Tribunal attained finality.
219. Since we were given the number of Suits/Petitions pending in which the High Court of
Sindh has passed restraining orders, we noticed that Suit No. 1029 of 2014 was filed by
Muhammad Ali Baloach in the High Court of Sindh. This Suit was not mentioned in the list
provided to us by the Registrar of the High Court of Sindh, therefore, on our direction the office
inquired from the Registrar as to why the said Suit has not been mentioned in the list. We were
informed that it was by mistake of the office of the High Court of Sindh and accordingly the R&P
of the suit was called. After perusal of the record of the Suit, we noticed with shock that the
Plaint was presented in the office of the High Court of Sindh on 23-6-2014 and permission for
fixation of the case was granted by an Additional Judge (Justice Aamir Raza Naqvi) in an
unprecedented manner on the same day. The matter was placed before Justice Saeeduddin
Nasir with the following three office objections:--
220. Justice Saeeduddin Nasir, on the same day, while suspending Notification dated 2-7-2013,
issued by the Sindh Government in compliance with the judgment under review of this Court,
passed the following order:--
"(1) Granted.
(2) One week time is allowed to the plaintiff to affix the court fee on the plaint.
(3) It is contended that the plaintiff was appointed as A.D (Computer) in Special Branch,
Police Department in BPS-17, later on the said post was abolish vide order dated 11-12-
2013 and the plaintiff was appointed as Deputy Superintendent of Police. Subsequently,
vide notification dated 13-11-2007 he was appointed as S.P. The learned counsel for the
plaintiff states that due to order passed by the Hon'ble Supreme Court in Original
Criminal No.89 of 2011 the plaintiff was likely to be demoted from the post of S.P to
D.S.P. which was being hold by the plaintiff prior to being out of turn promoted as S.P.
but the defendant vide notification dated 2-7-2013 demoted the plaintiff as Assistant
Director (Computer) which post has been abolished in 2003. It is further contended by
the learned counsel for the plaintiff that the plaintiff had completed the field training
command as Police Officer for more than ten years and qualifies to hold the post of
D.S.P.
In view of the submission made by the learned counsel for the plaintiff, let notice be
issued to the defendant for a date to be fixed by the office after summer vacation. In the
meanwhile the operation of the notification dated 2-7-2013 to the extent of the plaintiff
is suspended."
221. The suit filed by Muhammad Ali Baloch contained the same reliefs in substance, which
were denied to him up to this Court. The prayers in the Suit are reproduced herein below:--
(a) To declare that the plaintiff is entitled to hold the post of "Deputy Superintendent of
Police" and defendants are liable to revive his status;
(b) Permanent Injunction restraining defendants from removing/ banishing the plaintiff
from his aforesaid post of "Deputy Superintendent of Police" and interim and final
directions to deliver the post of Deputy Suptt. of Police in whatsoever manner;
(d) Any other relief which this honourable Court deem proper may also be granted.
222. In the plaint, it was pleaded that the Service Tribunal had passed judgment on 30-12-2013
dismissing his Appeal. However, since the post of Assistant Director (Computer) had been
abolished, he filed C.P. No.D-388 of 2014 and C.P. No.D-2660 of 2014 in the High Court of Sindh,
which are pending adjudication. He pleaded that since no orders were passed in the Petitions
due to pendency of a large number of cases in the High Court of Sindh, he made representation
to the Chief Minister but to no avail. Consequently, he had filed suit, inter alia, on the ground
that his absorption in Police Force is similar in nature to the case of Ataullah Chandio, who was
from Law Department and was allowed to be absorbed in Police Force.
223. Muhammad Ali Baloach, after exhausting all his legal remedies up to this Court, has started
a fresh round of litigation on the pretext that the post of Assistant Director (Computer) was
abolished, therefore, he was not given posting. In the first place, abolition of the post of
Assistant Director (Computer) does not render him surplus owing to the fact that an IT Wing
exists in the Police Department, and he could have been posted in the said Wing by creating a
post of Assistant Director (Computer), or in any other department of the Sindh Government, in
terms of Rule 9-A of the Rules of 1974. He, however, could not seek relief as prayed either in the
Suit or in the Constitution Petitions pending in the High Court of Sindh. The findings recorded by
the Service Tribunal against Muhammad Ali Baloch, have attained finality on his withdrawal of
the Civil Petition from this Court. The Service Tribunal in its detailed judgment has held that
Muhammad Ali Baloch was wrongly appointed by transfer under Rule 9(1) as DSP in regular
Police in defiance of the restrictions contained under the Recruitment Rules, which do not
permit his horizontal movement to penetrate in Provincial Police Service as DSP which is a
distinct cadre. Muhammad Ali Baloch was appointed as Assistant Director in (Computer Wing),
which cannot be construed to be an appointment in regular Police Force. We have already
interpreted the scope of Rule 9(1) of the Rules of 1974. Muhammad Ali Baloch was not eligible
to be appointed by transfer as DSP for want of required qualification, experience, expertise as
contained under Rule 9(1) read with Rules 3(2), 7 and 8 of the Rules of 1974. He was rightly
repatriated to the Computer Wing in Police Department.
224. In the Suit, Muhammad Ali Baloch has concealed the fact that he approached this Court
challenging the judgment of the Sindh Service Tribunal and on 25-2-2014, his Counsel, after
arguing the Petition at some length, had withdrawn the Civil Petition in his presence.
225. Once a Civil Servant has exhausted all the legal remedies, he cannot initiate a second round
of litigation by filing Constitution Petition or Suit on the same subject. The learned High Court, in
the first place, should not have entertained the Suit or Petition in view of the bar contained
under Article 212 of the Constitution, as Muhammad Ali Baloch is a Civil Servant and the issues
raised before the High Court, fall within the domain of the Sindh Service Tribunal, which had
already recorded the findings against him. It is established law that a Civil Servant cannot raise
any issue which pertains to terms and conditions of his service, particularly, when such issue has
finally been decided by this Court. The learned Judge (in Chambers) Mr. Saeeduddin Nasir, has
not applied his mind while entertaining the Suit on 23-6-2014, and had suspended the
notification issued by the Sindh Government, which was issued in compliance with the judgment
of this Court, maintained by the Sindh Service Tribunal, and his Civil Petition against the
judgment of the Tribunal had attained finality on its withdrawal. The learned Judge (in
Chambers) has not even examined the contents of the plaint which refer to the judgment of the
Sindh Service Tribunal and in a very casual manner has passed the order suspending the
notification.
226. We are at a loss to understand as to how the learned Judge (in Chambers) could sit in
Appeal against the findings of this Court in the face of the language of Article 189 of the
Constitution which mandates that, "Any decision of the Supreme Court shall, to the extent that
it decides a question of law or is based upon or enunciates a principle of law, be binding on all
other Courts in Pakistan." If such practice is allowed to continue, it will render the hierarchy of
this Court ineffective as mandated by the Constitution.
227. For the aforesaid reasons, we hold that Muhammad Ali Baloch has wilfully committed
contempt of this Court by re-agitating the issues through the Constitution Petitions Nos. D-388
of 2014 and D-2660 of 2014, and the Suit, which attained finality after the judgment of this
Court and the Sindh Service Tribunal, as noticed hereinabove, with the ulterior motive to defeat
the findings of this Court. His case is fully covered by the judgment of this Court in the case of
Abdul Majid and another v. Oazi Abbas Hussain Shah (1995 SCMR 429), in which, in the similar
circumstances, contempt proceedings were initiated by this Court.
228. We therefore, direct the Office to issue Show Cause Notice to Muhammad Ali Baloch under
section 17(1) of the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution
calling upon him to explain as to why he should not be proceeded against for committing
contempt of this Court. The proceedings filed by Muhammad Ali Baloch before the High Court of
Sindh in Suit No. 1029 of 2014 and in Constitution Petitions Nos. D-388 of 2014 and D-2660 of
2014 stand abated. Sindh Government shall appoint him in any Department, within 15 days
from the date of communication of this Judgment, as Assistant Director (Computer), which was
his substantive post before his absorption in Sindh Police force as DSP and report compliance.
He, however, will be entitled to inter-se seniority amongst his batchmates before his absorption.
Suit No.519 of 2014 (Ali Ahmed Lund)
229. In order to find out the latest status of different Suits and Constitutional Petitions filed by
the Civil Servants before the High Court of Sindh after the orders dated 30-8-2012, 3-1-2014 and
the judgment under review, we asked the Registrar of the High Court of Sindh to provide us list
of Suits and Constitutional Petitions filed before the High Court of Sindh. While going through
the list, we called for the R&Ps of Suit No.519 of 2014 and Suit No. 1052 of 2014 and the
connected High Court Appeals to examine as to whether the aforesaid orders of this Court are
taken note of by the High Court of Sindh while entertaining the Civil Suits.
230. We noticed that Suit No.519 of 2014 was filed by Ali Ahmed Lund who, in collateral
proceedings, was ordered to be repatriated to his parent department in the Federal
Government, when he was serving on deputation as D.C.O in the Sindh Government. We called
the R&P of the suit, and upon perusal we noticed that he sought in the Suit alteration in his date
of birth with the following prayer:--
"(a) Declare that as per Matriculation Certificate, NADRA record, and in the Service
Record, the correct date of birth of plaintiff is 2-4-1956, and he is deemed to stand
retired on 1-4-2016 and not on 1-4-2014 as per the erroneous Seniority List dated 25-9-
2009.
(b) Declare that the Seniority List dated 25-9-2009 of officers working in BS-20 under
respondent No.2 is null and void to the extent of the date of birth of the plaintiff which
is wrongly mentioned as 2-4-1954 instead of 2-4-1956 as mentioned in Service Record.
(c) Direct the defendants to rectify the seniority list dated 25-9-2009 and mentioned the
correct date of birth of the plaintiff which is 2-4-1956 and duly corroborated by his
Matriculation Certificate and CNIC issued by the NADRA and by service record.
(d) To restrain the defendants of any person acting through or under them from taking
any coercive action against the plaintiff viz his retirement from service and service
record which shows the correct age of the plaintiff as 2-4-1956 or by prematurely
issuing Notification of Retirement and or acting upon the same prejudicially to the
plaintiff on the basis of erroneous date of birth which is only reflected in seniority list.
(e) Damages against the defendants at Rs. 110 Million jointly and severally.
(f) For any other/additional relief(s) that this Hon'ble Court may deem fit and proper in
the facts and circumstances of this case;
231. The suit was filed by him on 1-4-2014, pleading therein that he was born on 2-4-1956 and
his date of birth was incorrectly recorded in the service record as 2-4-1954. In the pleadings, he
admitted that he acquired knowledge of his incorrect date of birth in the year 2009 when
seniority list was floated. He made representations at times for correction in his date of birth till
26-11-2013 and since no response was received, therefore, he filed the Civil Suit.
232. On perusal of the record, we further observed that on 27-3-2014, Ali Ahmed Lund has filed
a Constitutional Petition No.D-1566 of 2014 on the same subject with the following prayer:--
(a) To declare that as per Matriculation Certificate and NADRA record, the correct date
of birth of the petitioner is 2-4-1956 which has erroneously been entered/mentioned in
his service record by the respondent No.3 as 2-4-1954 which is liable to be
rectified/cured with immediate effect.
(b) To direct the respondents to rectify the date of birth of the petitioner in their record
as 2-4-1956 instead of 2-4-1954 and till the virtual correction, it may be read and
understood as 2-4-1956.
(c) To permanently restrain the respondent No.3. or anyone else working on his behalf
to issue any notification of the retirement of the petitioner according to erroneous date
of birth of the petitioner i.e 2-4-1954 mentioned/ entered in their record.
(d) To direct the respondents to act in accordance with law and not to misuse/abuse of
his official powers conferred upon them under the law.
(e) Any other relief (s) warranted by the facts and circumstances of the case."
233. Apparently, on his failure to get the interim relief in the Writ Petition in which notice was
ordered by the learned Division Bench, he opted to file the aforesaid Civil Suit, concealing the
fact that he had filed a Constitutional Petition prior to filing of the suit on the same subject.
234. On 10-4-2014, he was granted interim order of status quo by the learned Judge in
Chambers (Justice Nadeem Akhter) in the following terms:--
"Learned Counsel for the plaintiff has filed a statement along with some documents,
which are taken on record. The documents filed today show that the plaintiff is still
working as the Secretary to Government of Sindh/Chairman Sindh Cooperative Housing
Authority. It is urged that there is a serious apprehension that in case ad interim orders
on this application are not passed, the plaintiff may either be removed from his service
or any other coercive action may be taken against him by the defendant. The bailiff's
report dated 9-4-2014 shows that the defendants have been duly served. Till the next
date of hearing, the defendants are directed to maintain status quo. To come up on 25-
4-2014."
235. On 29-5-2014, the learned Judge in Chambers (Justice Muhammad Shafi Siddiqui) while
dismissing the suit passed the following order:--
"Mr. Ghulam Akbar Jatoi Advocate undertakes to file power (of Attorney) on behalf of
plaintiff.
Adjournment application has been filed by the previous Counsel for the plaintiff who is stated to
be unwell. The application is taken on record. Office is directed to assign C.M.A. number to this
application. However, the application is dismissed on account of the fact that plaintiff has
engaged another Counsel. The plaintiff is also present in person who confirms that he has
engaged Mr. Ghulam Akbar Jatoi.
Learned counsel for the plaintiff argued that this suit has been filed to rectify the error in the
date of birth of the plaintiff as 2-4-1956 instead of 2-4-1954. It is contended by Mr. Jatoi that
along with the plaint they have filed certificate of Matric, Board of Intermediate, NIC as
annexures and has also shown smart card recently issued. He also states that even in the old
and new passports the date of birth is mentioned as 2-4-1956. He submits that it is the right of
the plaintiff to get the date of birth corrected in all official records including the service record.
Learned State counsel has assisted this Court and submits that the Annual Confidential Report is
being issued since he became civil servant and joined the service and he has been mentioning
his date of birth as 2-4-1954 and as such this delay in rectification of the service record is
uncalled for and it only smelts mala fide. Learned State counsel further submits that in terms of
Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 the date of
birth once recorded at the time of joining government service shall be final and thereafter no
alteration in the date of birth of a civil servant shall be permissible.
Learned counsel for the intervener also relied upon recent pronouncement of Hon'ble Supreme
Court and submitted that suit is not maintainable.
Heard the learned counsel and perused the record. Admittedly the certificates as well as the
identity card which are annexed with the plaint show the date of birth of the plaintiff as 2-4-
1956, however, the question before the Court is not the rectification of date of birth but in fact
the question is as to whether such rectification can be made in the service record of the plaintiff.
The plaintiff apparently passed CSS in 1983 and became civil servant in 1984 and he has been,
since then, maintaining his date of birth as 2-4-1954. Previously before the amendment in the
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 it was the privilege of the
employee to rectify the date of birth in the record including the service record whereas after
insertion of Rule 12A which was inserted by S.R.O.521(I)/2000 dated 31st July 2000 it is not
permissible for the applicant/ employee to get his date of birth rectified. This question came
before the Hon'ble Supreme Court in the case of Ahmed Khan Dehpal v. Government of
Balochistan (2013 SCMR 759) wherein it is observed that after so many years the idea to have
the date of birth altered appeared to be an afterthought of the civil servant. In this case also it is
almost after 30 years of service when it revealed to plaintiff that his actual date of birth is 2-4-
1956. It was observed by the Hon'ble Supreme Court that the question was as to how the civil
servant, who joined the service in 1982, could not know about his actual date of birth despite
the passage of more than two decades, especially when at various stages during his studies as
well as service he filled many examination forms, pro formas as well as service book. In the
judgment of the Hon'ble Supreme Court the case of the employee/civil servant was that even in
the documents of Matric and Intermediate certificates date of birth was wrongly mentioned
whereas in the instant case learned Counsel for the plaintiff pleaded that though the date is
rightly mentioned, however in the service record it is wrongly mentioned as 2-4-1954 instead of
2-4-1956.
In view of the amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules,
1973 such right of correction in the date of birth was taken away absolutely and it was clarified
that once the date of birth in the record at the time of joining is mentioned the same shall be
final and no alteration is permissible.
Such insertion of 12A is logical as at the twilight of the career it could only be termed as mala
fide. The instant suit filed by the plaintiff is not simplicitor a correction of the date of birth in fact
it is correction in date of birth in the service record. Had it been simple suit for declaration that
his date of birth is to be rectified, Rule 12A of 1973 would not have been applied but in instant
case, service record was sought to be corrected and in terms of Rule 12A of the Civil Servants
(Appointment, Promotion and Transfer) Rules, 1973 such is barred. The strength and power of
Rule 12A is statutory.
The issue of maintainability of the suit was framed earlier and parties were also put on notice.
Even on the last date the plaintiff was present along with his counsel and also today he is
present along with his newly engaged Counsel and I appreciate that he and his counsel tried to
assist the Court. As far as the maintainability of the suit is concerned, the point involved has
already been decided in the case referred above and in view of the judgment of the Hon'ble
Supreme Court the suit is not maintainable. The suit is therefore, dismissed along all pending
applications.
The plaintiff seems to have reached the age of superannuation on 1-4-2014 and hence any
salary, perks, privileges or any other benefits availed subsequent to the age of superannuation
shall be returned forthwith."
236. On 3-6-2014, Ali Ahmed Lund, filed High Court Appeal No.157 of 2014, challenging the
order of the learned Single Judge, who dismissed his Suit. On 11-9-2014, the High Court Appeal
was fixed for Katcha Pashi before learned Division Bench-V, comprising Justice Hassan Azhar
Rizvi and Justice Aziz-ur-Rehman, which was allowed in the following terms:--
"Today parawise comments have been filed on behalf of respondent No.2 which are
taken on record. Learned counsel for appellant states that impugned order was passed
on 29-5-2014 when inter alia the injunction application was fixed for hearing. Per
learned Counsel, no proper opportunity was given to the counsel for the appellant to
argue his case. In view of the pro and contra pleas raised before the learned trial Court
requires evidence, thereore, after setting aside order dated 29-5-2014, we remand the
case to the learned trial Court to decide the controversy involved afresh. The
notification however, issued by the respondent regarding the appointment of officer in
place of the appellant shall not be effected or otherwise be prejudiced in any manner.
Appeal stands disposed of along with the pending application.
Petition No. D-2386/2014 tagged with this case is hereby de-tagged and the same be
heard on 23-1-2014"
237. On 21-11-2014, after remand another Injunction Application was filed by the plaintiff Ali
Ahmed Lund, who stood retired on 1-4-2014, pursuant to the notification issued by his parent
Department i.e. Ministry of Trade and Commerce, which was allowed, by the learned Judge (Mr.
Justice Saeeduddin Nasir) in Chambers, in the following terms:--
"In view of above observations the operation of order dated 9-4-2014 is suspended till
the next date of hearing.
The defendant No.4 may allow joining the plaintiff as well as posting order in
accordance with joining order dated 12-9-2014.
This order shall not have any adverse affect on the appointment of any officer in place
of the appellant."
238. We have noticed that the Counsel representing the State did bring to the notice of the
learned Judge in Chambers of the High Court the case of Ahmed Khan Dehpal v. Government of
Balochistan (2013 SCMR 759), which was not taken note of. We can safely assume that neither
the learned Judge in Chambers nor the Appellate Bench have carefully read the provisions of
section 4(1) of the Federal Service Tribunal Act 1973 which confers exclusive jurisdiction upon
the Federal Service Tribunal to adjudicate upon the matters relating to the terms and conditions
of service of a Civil Servant inclusive of the disciplinary proceedings. Article 212 of the
Constitution places fetters on the jurisdiction of a Civil Court and a High Court to entertain
matters relating to terms and conditions of service of a Civil Servant. We have already dealt with
the scope of Article 212 of the Constitution separately. The mode of correction in the date of
birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion
and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and
cannot be resorted to through the Civil Suit. It has also been well established by now that a Civil
Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in
a suit and in this respect principles laid down in the case of Dr. Muhammad Aslam Baloach v.
Government of Balochistan (2014 SCMR 1723) are fully attracted.
239. Ali Ahmed Lund was a Civil Servant from the Federal Government, serving in Trade and
Commerce Group since 1984 and was on deputation with the Sindh Government when he filed
the Constitutional Petition and the Suit before High Court of Sindh. He was required to approach
the Federal Service Tribunal for redressal of his grievance. The learned Judge in Chambers and
the Appellate Bench misdirected themselves while holding that issue of alteration in date of
birth requires factual enquiry and, therefore, Suit was competent. By section 3(3) of the Sindh
Service Tribunals Act, the Tribunal has been conferred exclusive powers of a Civil Court while
holding enquiry. This aspect of the matter lost sight by the two forums while passing the orders
in Suit and in the High Court Appeal coupled with the bar of jurisdiction under Article 212. The
learned Judge in Chambers overlooked the fact while directing the Sindh Government to allow
joining and give posting order to Ali Ahmed Lund who was on deputation. A deputationist
cannot seek his posting in a borrowing department once he was relieved of his duties for any
reason. The High Court of Sindh was not competent to entertain Suit of the nature for correction
of the date of birth, which form part of terms and conditions of service in view of the bar
contained in Article 212 of the Constitution.
240. We for the aforesaid reasons, are of the considered view that Ali Ahmed Lund, who
remained on deputation in Sindh for more than 15 years according to the brief note provided to
us by S&GAD, could not competently file a Civil Suit or Constitutional Petition which he had
withdrawn on 27-10-2014, seeking alteration in his date of birth that too at the verge of his
retirement. Thus for the aforesaid reasons, the Civil Suit No.519 of 2014 stands abated.
However, it will be open for the Plaintiff to approach this Court through a Review Petition, if he
feels aggrieved of this judgment.
Suit No. 1052 of 2014 (Mir Aijaz Hussain Talpur)
241. Mir Aijaz Hussain Talpur, an officer of the District Management Group, who was serving on
deputation in the Province of Sindh, filed Suit in the High Court of Sindh. He was posted as
Secretary, Co-operation and on his transfer, he filed the aforesaid Civil Suit on 10-6-2014, with
the following prayer:--
(a) To declare that the notification No. SO -I(SGA&CD)-3/65/93 dated 23-11-2013 issued
by the defendant No.1 on a closed weekly holiday i.e Saturday the 23rd November, 2013
thereby removing/transferring the plaintiff from the post of Secretary Co-operation,
being in gross violation of rule 35 of the Sindh Government Rules of Business, Esta Code,
Civil Servants Act, 1973 the Rules made thereunder and Articles 5, 9, 189 and 190 of the
Constitution of Pakistan is ab initio illegal, unlawful and void and as such is liable to be
struck down.
(b) To grant mandatory injunction, suspend the operation of the impugned order No.
SO(SGA&CD)-8/2/2005 Karachi dated the 2nd January 2014 being ab initio as well as to
suspend all the orders, transfers postings and whatever and direct the defendant No.1
to reinstate the plaintiff forthwith on his original posting i.e Secretary Co-operation.
(c) To grant mandatory injunction, suspend the operation of the order dated 3-6-2014,
vide No. SGA&CD-8/2014 government of Sindh Services, Karachi and declare the same
ab initio null and void and direct the defendants Nos. 11 and 5 to transfer and post the
plaintiff as Secretary Co-operation, Government of Sindh.
(f) To grant such other better relief which this honourable Court may deem fit and
proper under the circumstances of the case.
(h) Any other relief which honorable Court may deem fit to grant."
242. On 21-11-2014, the learned Judge in the Chambers (Justice Saeeduddin Nasir) granted ad
interim relief to the plaintiff, relevant para of the order is reproduced below:--
"(2) In view of the submissions made by the learned counsel for the plaintiff, the
defendants are restrained from taking any departmental action including transferring or
initiating any criminal case against defendant or placing the plaintiff as OSD or to do
anything which is detrimental to the reputation and dignity of the plaintiff.
(3) & (4) The operation of the Notifications No. SO-1 (SGA&CD)-3/65/93 dated 23-11-
2013, impugned order No.3/1-0/2013 D-1, Islamabad dated 10-1-2014 Order No. SO-
1(SGA&CD)-8/2/2005 dated 13-5-2014 is suspended till next date of hearing."
243. One Shahzar Shamoon, defendant No.3 in the Suit, a civil servant from Sindh, challenged
the above order in High Court Appeal No.288 of 2014, which was fixed on 24-11-2014, before a
learned Division Bench of the High Court of Sindh, comprising Justice Hassan Azhar Rizvi and
Justice Aziz-ur-Rehman. After hearing, the learned Bench passed the following order, partially
suspending the order dated 21-11-2014 passed in Suit No. 1052 of 2014 of Mir Aijaz Talpur:--
"(1) Urgent application is allowed.
(4) & (5) Learned counsel for the appellant has drawn our attention to the order dated
10-1-2014 passed in C.P. No. D-4971/2013 whereby petition was dismissed wherein
Notification No.SOI(S&GAD)-3/65/93 dated 23-11-2013 has been challenged, certified
copy of the order is enclosed as Annexure 'C/1' at page 99 of the file. Learned Counsel
for the appellant contends that respondent No.1 filed another petition bearing C.P.
No.D-2386 of 2014 and almost with the same prayer the respondent No.1 filed Suit No.
1052 of 2014. The said suit was fixed in Court on 3-4-2014 and the Court has directed
the counsel for respondent No.1 to satisfy the Court on the maintainability of that suit,
however, the respondent No.1 by suppressing material facts and by misleading the trial
Court has succeeded to obtain impugned order dated 21-11-2014. Learned Counsel for
the appellant has drawn our attention to an order dated 11-9-2014 passed in H.C.A. No.
157 of 2014 operative part of the said order is read as under:--
The learned counsel for the appellant has also drawn our attention to the order passed
on the same day by the same learned Judge in Suit No.519 of 2014, wherein it was
observed that "this order shall not have any adverse affect on the appointment of any
officer in place of the appellant."
Issue notice to the respondents, learned Advocate-General, Sindh and learned DAG for
9-12-2014. Till the next date of hearing, operation of the impugned order dated 21-11-
2014 passed in Suit No. 1052 of 2014 enclosed as Annexure 'A' shall remain suspended."
244. On 24-11-2014, the matter was placed before Justice Mohammad Shafi Siddiqui, who
passed the following order:--
"This is an urgent application filed along with application under Order VII, Rule 11, C.P.C.
Learned Advocate General contends that in pursuance of the order passed by the
Hon'ble Supreme Court the suit is not maintainable.
Notice to the plaintiff for a date to be fixed in the first week of December, 2014.
Mr. Faisal Siddiqui files Vakalatnama on behalf of defendant No.3 which is taken on
record."
245. On 1-12-2014, all the applications in the Suit were fixed before Justice Muhammad Shafi
Siddiqui, and the following order was passed:--
"(1) Granted.
(2) Mr. Farooqui waives notice of the application, copy whereof has been supplied to
him. Counter affidavit/rejoinder, if any, be filed and exchanged before next date.
Since on account of sad demise of Justice (R) Saleem Akhtar the Court work is
suspended, the matter is adjourned to 4-12-2014 when learned counsel for the parties
are directed to assist the Court regarding maintainability of the suit as prima facie it
appears that the relief that is being sought in this suit has already been held to be not
maintainable in terms of order passed by learned Division Bench in C.P.No.D-4971 of
2013, operative part of which is available at page 235 of the file. Even otherwise the
plaintiff has challenged the transfer and posting, which are within the ambit of terms
and conditions of service, and as such there are serious questions regarding
maintainability of the suit."
246. We, after perusal of the aforesaid record in suits and H.C.A, are of the considered view that
the issue raised by the parties relates to their terms and conditions of service and cannot be
entertained by a High Court either in its Constitutional jurisdiction or in its Original Civil
jurisdiction or in High Court Appeal, being barred under Article 212 of the Constitution. We, for
the reasons already recorded by us separately on the scope of Article 212 of the Constitution,
are of the considered view that the Suit No. 1052 of 2014, filed by Mir Aijaz Hussain Talpur and
the High Court Appeal No.288 of 2014, filed by Shahzar Shamoon, stand abated for want of
jurisdiction of the High Court. However, it would be open for the aggrieved party to approach
the concerned Service Tribunal or this Court in Review, if so advised.
247. Before parting with this judgment, we have noticed that a civil servant cannot approach the
Service Tribunal unless he exhausts the remedy of departmental appeal/representation under
section 22 of the Sindh Civil Servants Act, 1973. Section 4(i)(a) of the Sindh Service Tribunals Act,
1973, provides that a Civil Servant can approach the Tribunal, subject to his exhausting remedy
under section 22 of the Sindh Civil Servants Act, after lapse of 90 days from the date on which
such appeal/application was so preferred. In other words, a Civil Servant aggrieved by an order
of the department has to file a representation or Appeal within 30 days of passing of such order
and if the said authority does not decided his appeal/representation within 90 days, he can
prefer an appeal before the Tribunal, after lapse of time as contained under section 4(a) of the
Sindh Service Tribunals Act. These provisions of section 22 of the Sindh Civil Servants Act and
section 4 of the Sindh Service Tribunals Act require to be re examined after insertion of Article
10A in the Constitution, as it restricts a Civil Servant from seeking expeditious remedy from the
Tribunal which is constituted under the command of the Constitution.
248. We have also examined the service laws of other Provinces and the Federation and find
that they have similar provisions in their service laws, as contained in Sindh Service laws. The
provisions of section 22 of the Sindh Civil Servants Act and the Section 4 of the Sindh Service
Tribunals Act, restrict a Civil Servant to get efficacious and expeditious remedy against the order
of the department till the expiry of almost 120 days. After the promulgation of Article 10-A, we
find it imperative to re-examine the existing law which apparently bars the filing of appeal in the
Service Tribunal before the passage of mandatory 90 days, but practically for 120 days. The law
also needs to be looked afresh, because writ jurisdiction in the matters relating to terms and
conditions of service against the executive by the aggrieved Civil Servant is barred under Article
212 of the Constitution.
249. Moreover, this Court has also time and again emphasized upon reinforcement of good
governance and strict observance of rules by the public functionaries. In the case of Syed
Mehmood Akhter Naqvi v. Federation of Pakistan (PLD 2013 SC 195), this Court has clearly
reiterated the settled principles of good governance by stating that the public functionaries are
not obliged to follow illegal orders of higher authorities. The principle has since been reiterated
in order to enforce good governance and adherence to rule of law in public service.
250. However, a situation could and does arise, in which a civil servant may face wrath and
vendetta of his superiors, if he refuses to carry out the illegal orders. In such a situation, he has
the only right or option to make a representation etc to the concerned authority to seek redress
of the wrong committed against him, but in many such cases his representation may be ignored
or outright rejected by the authorities under the political influence or for ulterior motives. In
that case, an aggrieved Civil Servant is left with no option but to wait for mandatory 120 days,
enabling him to file an appeal etc. before the Tribunal. However, in the intervening period, an
aggrieved Civil Servant faces un compensable hardship and damage to his career, name and
reputation.
252. In view of the aforesaid problems faced by the Civil Servants due to lengthy process of filing
appeal in the Tribunal and availing of relief, it is imperative to provide an efficacious and
expeditious alternate remedy to the Civil Servants by way of allowing them to approach the
Service Tribunal, Federal or Provincial, without waiting for a period of 90 days, as contained
under section 4(i)(a) of the Service Tribunals Act, by preferring an Appeal against the orders.
Therefore, we are of the view that following issues are required to be answered at the
touchstone of Article 10-A of the Constitution:--
(1) Whether section 4(i)(a) of the Service Tribunals Act, restricting a Civil Servant from
filing appeal to the Tribunal after lapse of 90 days is violative of the spirit and command
of Article 10-A of the Constitution.
(2) Whether time frame provided by Section 4 of the Service Tribunals Act, debarring an
aggrieved Civil Servant to approach the Service Tribunal amounts to denial of the relief
to him in terms of Articles 4, 9 and 25 of the Constitution.
253. We, therefore, for the aforesaid reasons, feel it necessary to take up these issues in suo
motu jurisdiction under Article 184(3) of the Constitution, in separate proceedings as the issues,
inter alia, are of public importance and have far reaching effects on the service structure of the
Civil Servants in the Federation and the Provinces.
254. This judgment shall also be sent to the Chief Justices of all the High Courts through
Registrars for their information, perusal and circulation amongst all the Hon'ble Judges. This
judgment shall also be sent to the Chief Secretaries of all the Provinces as well as the Secretary,
Establishment Division, Government of Pakistan, Islamabad, with the direction that they shall
streamline the civil service structure in light of the principles laid down in this judgment. In
addition, the office shall also send copies of this judgment to the Chairmen of the Federal
Service Tribunal, Islamabad and the Sindh Service Tribunal, Karachi, through their Registrars, for
information and compliance.