PLJ 2014 SC 331
[Original Jurisdiction]
[Original Jurisdiction]
Present: Tassaduq Hussain Jillani, Asif Saeed Khan Khosa & Amir Hani Muslim, JJ.
CONTEMPT PROCEEDINGS AGAINST CHIEF SECRETARY, SINDH and others
Crl. Orig. P. No. 89/2011, CMA No. 309-K/2012, CMA No. 310-K/2012, Crl.M.As. Nos. 42-K/2012, 80-K/2012, 87-K/2012, 13-K/2013, CMA No. 2453/13, Crl. M.A. No. 29-K/2013, CMA No. 131-K/2013, Crl. M.As. Nos. 185-K/2012, 225/2013, 226/2013, 227/2013, CMAs Nos. 244-K to 247-K/2013, 257-K & 258-K/2013, Crl.M.A. No. 263/2013, Crl. M.A. No. 282 in Crl. Original Petition No. 89/2011, Constitutional Petition No. 71/2011, CMAs. 5547/2013, 2560/2013, 2561-2565/2013, 2112-2113/2013, 2706-2707/2013, In Const. Petition No. 71/2011. Constitutional Petitions No. 21/2013, 23/2003 & 24/2013, Civil Petition No. 6-K/2011 & CMA No. 278-K/2011, Civil Appeals No. 98-K/2010, 100-K/2010, 12-K/2012 A/W Crl. M.As. No. 51-K to 53-K/2012, CMA No. 2014/2013, Civil Appeal No. 131-K/2010 A/W 241-K/2012 & Civil Appeal Nos. 183-K to 185-K/2011, Crl. M.A. No. 252/2013 in Crl. M.A. No. 98/2012 in Crl. M.A. No. 339/2012, H.R.C. No. 12995-S/2011 and H.R.C. No. 2103-G/2011, decided on 12.6.2013.
(On appeal against the judgments in CA 183-K/11 = dt. 17.02.2011, SST, Kcy. in SA.39/2008, CA.12-K/12 = dt. 14.04.2011, SHC, Kcy in Const.P.D-932/09, CA.98/2010 = dt. 23.02.2010, SST, Kcy. in SA.No. 1/2009, CA.100-K/10 = dt. 22.03.2010, SST, Kcy. in SA No. 65/09, CA.131-K/10 = dt. 31.03.2010, SST, Kcy. in SA No. 94/09 and CP.6-K/2011 = dt. 29.10.2010, SST, Kcy. in SA No. 66/09)
West Pakistan Civil Service (Executive Branch) Rules, 1964--
----R. 5(4)(b)--Constitution of Pakistan, 1973, Art. 184(3)--Appointment by transfer to the post of A.C. by C.M. after exhausting his prescribed quota--Validity--Appointment would affect seniority of incumbents, who would pass PCS examination on merits--Supreme Court while reverting nominated officers to their original positions and directed Sindh Government to formulate mechanism for such appointments in future--Officers inducted by Chief Minister in excess of his prescribed quota would relegate to their original positions. [Pp. 402 & 436] A, B & EEE
Constitution of Pakistan, 1973--
----Arts. 4, 9, 18, 25 & 184(3)--Constitutional petition--Challenging laws relating to civil service to be violative of fundamental rights guaranteed under Constitution--Maintainability--Question raised in the petition being of public importance relating to rights of civil servants, petition was maintainable. [Pp. 403 & 404] C & D
PLD 2012 SC 292 and 2010 SCNfR 1301 rel.
Sindh Civil Servants (Regularization of Absorption) Act, 2011 (XVII of 2011)--
-----S. 3--Sindh Civil Servants (Regularization of Absorption) Ordinance (III of 2011), S. 9-A--Sindh Civil Servants (Amendment) Ordinance (VI of 2012), (Second Amendment) Ordinance (VII of 2012), (Amendment) Act (I of 2013), (Second Amendment) Act (XXIV of 2013), Preambles--Sindh Civil Servants Act (XIV of 1973), Ss. 9 & 9-A--Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, Rr. 9 & 9-A--Constitution of Pakistan, 1973, Arts. 4, 9, 25, 184(3), 240(b) & 242--Constitutional petition--Challenging the vires of statutes--Absorption of employees of other organizations to any Cadre as civil servants with back-dated seniority by C.M. under Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011 and Sindh Civil Servants (Regularization of Absorption) Act, 2011--Validity--Term "absorption" was not defined in Sindh Civil Servants Act, 1973, rather same being an appointment by transfer could be made under R. 9-A of Rules, 1974 subject to possessing matching qualifications, experience and expertise prescribed for such post under R. 3(2) thereof--Absorption in absence of mechanism therefor under newly added S. 9-A of Sindh Civil Servants Act, 1973 was violative of Constitution--Conferring status of civil servant on a person without competing through recruitment process by virtue of impugned legislation would deprive other civil servants of their fundamental rights of "status" and "reputation" guaranteed under Constitution--Civil servant appointed on merits after qualifying competitive examination and fulfilling codal formalities would lose his right to be considered for promotion, if an employee from other organization was absorbed, granted back dated seniority and conferred status of a civil servant under impugned legislation without undertaking competitive process--Impugned legislations were discriminatory--Provincial Assembly could promulgate law relating to service matters pursuant to parameters defined under Arts. 240 & 242 of Constitution read with Act, 1973, but could not enlarge definition of "civil servant" by appointing a non-civil servant in such manner and introduce any validation Act in nature of multiple or parallel legislation on subject of service law--Impugned legislations were amendatory and were not new laws, but were continuation of old/original statute, which requirements had to be met--Impugned legislation for being violative of Recruitment Rules would encourage nepotism, corruption and bad governance--Impugned legislations did not meet standards of jurisprudence mandating safeguards provided to civil servant under Constitution--Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae--Supreme Court declared impugned legislations and benefits extended thereunder by Gpvernment for being violative of the Constitution. [Pp. 405, 406, 407, 408, 409, 410 & 412] E, F, G, H, I, J, K, L, M, N & O
PLD 1997 SC 582; 2003 SCMR 1815; PLD 1983 SC 457; PLD 2010 SC 265; 2000 SCMR 567; AIR 1975 SC 2299; PLD 1992 SC 184; 2010 PLC (C.S.) 924; 2012 SCMR 307; 1998 SCMR 793; 1992 SCMR 435; 2003 PLC (C.S.) 1357; 2007 CLC 157; 1999 SCMR 104; 2011 SCMR 994; PLD 1982 SC 531; PLD 1996 SC 771; 1999 PLC (C.S.) 1149; 2010 PLC (C.S.) 1377; 2011 PLC (C.S.) 972; 1996 PLC (C.S.) 955; 2011 PLC (C.S.) 203; PLD 2002 SC 101; 2003 PLC (C.S.) 796; 2005 SCMR 1814; PLD 1997 SC 578; PLD 1995 SC 66; PLD 2000 SC 26; PLD 1983 SC 457; PLD 1997 SC 11; 1976 (4) SCC 543 (797); PLD 2010 SC 61; PLD 2011 SC 407; PLD 2002 SC 853; 2001 SCMR 1161; PLD 2000 SC 225; PLD 2002 SC 460; 1997 PTD 1555; PLD 1996 SC 324; 1992 SCMR 891; 1999 SCMR 382; PLD 1998 SC 388; PLD 1998 SC 1263; 1997 SCMR 1043; PLD 1993 SC 473; PLD 2008 SC 522; PLD 1997 SC 32; PLD 1997 SC 426; 1997 SCMR 641; PLD 1988 SC 416; 1993 SCMR 1533; 2012 PLC (C.S.) 917; AIR 1981 SC 1777; PLD 1956 FC 200; PLD 1969 SC 623; PLD 1973 SC 49 and PLD 1975 SC 50 ref. 2010 SCMR 1301; PLD 2013 SC 195; PLD 2011 SC 997; PLD 2012 SC 870; 2010 PLC (C.S.) 924 and PLD 1992 SC 207 rel.
Sindh Civil Servants Act, 1973 (XIV of 1973)--
----Ss. 2(1)(b)(i) & 10--Appointment by way of deputation and transfer--Scope--Non-civil servant could not be appointed on deputation to any cadre of Government--A person, who is transferred and appointed on deputation must be a Government servant, and such transfer should be made through the process of selection--Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience--In absence of these conditions, the Government cannot appoint anyone by transfer on deputation--No non-civil servant can be transferred and appointed in the Government by way of deputation to any cadre. [Pp. 414 & 419] Q & R
PLD 1996 SC 771 and 2010 PLC (C.S.) 1377 ref.
Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974--
----Rr. 9 & 9-A--Sindh Civil Servants Act, (XIV of 1973), Ss. 2(1)(b), 14 & 10--Constitution of Pakistan, 1973, Arts. 4, 8, 9, 25, 184(3), 240 & 242--Constitutional petition--Challenging the vires of statutes--Powers of Chief Minister to re-employ retired civil servants under S. 14 of Sindh Civil Servants Act, 1973 as amended by (Amendment) Ordinance, 2012, Sindh Civil Servants (Second Amendment) Ordinance, 2012, Sindh Civil Servants (Amendment) Act, 2013 and Sindh Civil Servants (Second Amendment) Act, 2013--Transfer of non-civil servants and non-cadre-civil servants to cadre posts by way of deputation and their absorption against cadre posts with backdated seniority by Chief Minister--Validity--Such deputationists, despite not having matching qualifications to cadre in which they were transferred and liable to be repartriated, had been absorbed against cadre posts on basis of impugned legislations--Neither a non-civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in Government by way of deputation as same would affect rights of civil servants serving in Government and create sense of insecurity in them--Impugned legislations meant for specific class of persons was violative of Art. 25 of Constitution and were violative of Arts. 143 & 240 of Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed' manner--Provincial Assembly could not change structure of service laws in conflict with provisions of Art. 240(b) or Art. 242(1B) of Constitution--Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae--Supreme Court struck down impugned legislations. [Pp. 419, 420, 421, 435 & 436] P, S, T, U, Y, W, X, Y, ZZ, CCC & DDD
PLD 2006 SC 602; 2010 PLC (C.S.) 924 and PLD 1992 SC 207 rel.
Constitution of Pakistan, 1973--
----Preamble--Powers under the Constitution, exercise of--Scope--Such powers not a prerogative, but a sacred trust reposed in authorities by Allah and the Constitution--Concept of power under the Constitution is distinct from other Constitutions of Common Law Countries--Sovereignty vests in Allah and it is to be exercised by "the people within the limits prescribed by Him", as a sacred trust--While exercising powers must keep in mind that it is not their prerogative, but a trust reposed in them by Allah and the Constitution. [P. 421] Y
Sindh Civil Servants Act, 1973 (XIV of 1973)--
----S. 14(3) as inserted by Sindh Civil Servants Act (Amendments) Ordinance (VII of 2012)--Constitution of Pakistan, 1973, Arts. 184(3), 4, 9 & 25--Constitutional petition assailing re-employment of retired civil servants by Government on contract basis by virtue of amendments made in S. 14 of Sindh Civil Servants Act, 1973--Validity--Locus poenitentiae, principle of--Applicability--Re-employment could be made in public interest, but in exceptional Power of Government to re-employ retired civil servants would adversely affect terms and conditions of serving civil servants by blocking their promotion to next higher cadre after gaining expertise by passage of time--Retired employee after re-employment would be governed by terms of contract--Amendments made through Amending enactments in the Sindh Civil Servants Act, 1973 had been made to defeat judicial pronouncement regarding induction of retired officer on contract basis--Such re-employment was violative of Arts'. 4, 9 & 25 of the Constitution and Sindh Civil Servants Act, 1973 and Rules made thereunder--Benefits extended to different employees or civil servants through impugned (Amending) legislations would not attract principle of locus poenitentiae--Supreme Court declared impugned legislations to be violative of the Constitution. [P. 421, 422, 423, 424] Z, AA, BB, CC, DD, EE, ZZ & PPP
2010 PLC (C.S.) 924 and PLD 1992 SC 207 rel.
Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974--
----R. 8-B--Sindh Civil Servants Act, (XIV of 1973), Ss. 9-A [as inserted by Sindh Civil Servants (Amendments) Ordinance, (IV of 2002) and Ordinance (V of 2012), Ordinance (VII of 2012) and Act (I of 2013)], Ss. 23-A & 23-B [as inserted by Sindh Civil Servants (Amendment) Ordinance (IV of 2002)]--Constitution of Pakistan, 1973, Art. 184--Constitutional petition assailing the grant of out-of-turn promotion to civil servants with backdated seniority--Validity--Government through impugned (Amending) legislations had extended benefit of S. 9-A of Sindh Civil Servants Act, 1973 to all civil servants by giving unbridled discretionary powers to authorities to protect culture of favouritism and nepotism, which prevailed earlier in Sindh Police--Impugned legislations had by passed stipulation of R. 8-B of Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, . 1974--Grant of out-of-turn promotion were class specific, prejudicial to public interest and not based on intelligible differentia, rather having destroyed service structure, affected inter-se seniority between officers serving on cadre posts after acquiring jobs through competitive process--Impugned (Amending) legislations were violative of Arts. 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner--Conflicting laws both Provincial and Federal would result in administrative chaos--Such unstructured discretion vested in Chief Minister would infringe valuable rights of meritorious civil servants of legitimate expectancy of attaining climax of career--Sindh Civil Servants (Amendment) Act, 2013 had been passed without debate some hours before completion of term of Government--Government under R. 8-B of Rules, 1974 could constitute Committee to evaluate performance of Police Officer for conferring award or reward for his act of gallantry, but out-of-turn promotion would not boost his morale--Supreme Court emphasized on Sindh Government to depoliticize police force--Legislature by using word "gallantory" in S. 9-A of Sindh Civil Servants Act, 1973 had never intended to grant out-of-turn promotion to civil servants other than police force--Impugned legislations being mendatory and were not laws, but were continuation of old/original Statute, which requirements had to be met--Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae--Impugned legislations did not meet standards of jurisprudence--Supreme Court declared the impugned legislations and benefit extended thereunder to be violative of the Constitution. [Pp. 424, 425, 426, 427, 428, 429, 430, 433, 434, 435 & 436] FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, RR, SS, UU, VV, WW, XX, ZZ, AAA, CCC & DDD
PLD 2012 SC 292; PLD 1995 SC 66; PLD 2000 SC 26; 2011 SCMR 1524; PLD 1992 SC 184; 2010 PLC (C.S.) 924; 2011 PLC (C.S.) 763; AIR 1975 SC 2299; 2005 SC 605 rel.
Judgment--
----Nullification of effect of a judgment of court through legislation--Scope--In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed--Legislature cannot destroy, annul, set aside, vacate reverse, modify or impair a final judgment of a court of competent jurisdiction nor can fundamental rights guaranteed under the" Constitution be abridged by legislature--Legislature is not only prohibited from re-opening cases previously decided by the (Courts, but is also forbidden to affect the inherent attributes of a judgment through a piece of legislation. [Pp. 432, 434 & 435] TT & YY
PLD 2010 SC 265; AIR 1975 SC 2299 and PLD 2005 SC 605 ref.
Locus poenitentiae--
----Principle of--Applicability--Scope--Locus poenitentiae is the power of receding till a decisive step is taken, but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction--If order is illegal, then perpetual rights cannot be gained on the basis of an illegal order. [P. 435] BBB
2010 PLC (C.S.) 924 and PLD 1992 SC 207 rel.
Mr. Abdul Fateh Malik, AG (Sindh), Mr. M. Sarwar Khan, Addl. AG (Sindh), Mr. Adnan Karim, Addl. AG (Sindh), Mr. Irfan A. Memon, Advocate, Mr. Naseer Jamali, Secy. (Services), Sindh, Mr. Sohail Qureshi, Addl. Secy. (Services), Sindh, Syed Asif Haider Shah, Secy. (Services), Sindh, Mr. Mudasir Iqbal, Sp. Secy. (Home), Sindh, Mr. Ali Sher Jakhrani, AIG Legal (Attendance) (in all cases).
Ch. Afrasiab Khan, Sr. ASC for Petitioner (in Const. P. 71/11, 21/13, for Appellant in CA No. 12-K/12).
Mr. M. S. Khattak, AOR (for petitioner in Const. P. No. 21/13 also for Respondent No. 10 & 12 in Const. P. No. 71/11, for Respondent Nos. 10 & 11 in CA No. 12-K/12).
Ch. Akhtar Ali, AOR (for petitioner in Const. P. No. 71/2011, for Appellant in CA No. 12-K/12).
Dr. Farough Naseem, ASC (for Respondent No. 3 in Const. P. No. 71/11, for interveners in HRC No. 12995-S/11)..
Mr. Mehmood A. Sheikh, AOR (for Respondent No. 3 & 6 in Const. P. No. 71/11).
Mr. Abrar Hassan, ASC (for Respondent No. 5 in Const. P. No. 71/11, for Respondent Nos. 4 & 6 in CA No. 12-K/12).
Mr. Anwar Mansoor Khan, Sr. ASC (for Sheraz Asghar in CA No. 12-K/12, for Applicant in Crl. M.A. No. 52-K/12).
Miangul Hassan Aurangzeb, ASC (for Respondent No. 6 in Const. P. No. 71/11).
Mr. Abbad-ul-Hasnain, ASC (for Respondent No. 8 in Const. P. No. 71/11, for Respondent No. 9 in CA No. 12-K/12).
Mr. Shabbir Ahmed Awan, ASC (for petitioner in CP No. 6-K/11, also for Respondent No. 9 in Const. P. No. 71/11, for Respondent No. 3 in 183 to 185-K/11, for Applicant in CMA No. 80-K/12, Crl. M.A. No. 263/13).
Mr. Hashmat Ali Habib, ASC (for Respondent No. 10 & 12 in Const. P. No. 71/11, for Respondent Nos. 10 & 11 in CA No. 12-K/12).
Mr. M. Aqil Awan, Sr. ASC (for Respondent No. 11 & 14 in Const. P. No. 71/11, also for Appellant in CA No. 183-K to 185-K/11, Respondent in 100-K/10, for Lal Khan in CA No. 12-K/12).
Mr. Muharram G. Baloch, ASC (for Applicants in CMA No. 241-K/12, 185-K/13 & 248-K/13).
Raja Muhammad Asghar, ASC (for Respondent No. 3 in CA No. 12-K/12).
Mr. Khalid Javed, ASC (for Respondent No. 12, and for Shahid Hussain & Zamir Ahmed in CA No. 12-K/12, for Applicant in Crl. MA No. 51-K/12, for Dr. Sarwat in CMA No. 309-K/12).
Mr. Yawar Farooqui, ASC (for Applicant in CMA No. 80-K/12).
Raja Abdul Ghafoor, AOR/ASC (for Applicant in CMA No. 87-K/12).
Syed Mehmood Akhtar Naqvi (in person) (Const. P. No. 24/2013).
Dr. Azeem-ur-Rehman Meo (in person) (Petition No. 10 in Const. P. No. 23/2013, Appellant in CA No. 184-K/11, Applicant in 244-K/13).
Syed Mehboob Ali Shah (in person) (Applicant in CMA No. 131-K/13).
Mr. Sarwar Khan, Inspector (in person) (Applicant in CMA No. 245-K/13).
Mr. Bahar-ud-Din Babar, Inspector (in person) (Applicant in CMA No. 247-K/13).
Mr. Khaleeq Ahmed, ASC.
Mr. Rasool Bux Samejo, Inspector.
Mr. Pervez Ahmed Sehar (in person)
Syed Attaullah Shah, Addl. Dy. Commissioner.
Mr. Ghulam Shabbir Jiskani, Hyderabad.
Dates of hearing: 16 to 19, 29, 30.4.2013 and 7, 8 & 9.5.2013.
Judgment
Amir Hani Muslim, J.--Through these proceedings, the appellants/petitioners/applicants and intervenors have challenged the vires of the following legislative instruments:--
1. The Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011.
2. The Sindh Civil Servants (Regularization of Absorption) Act, 2011.
3. The Sindh Civil Servants (Amendment) Ordinance, 2012.
4. The Sindh Civil Servants (Second Amendment) Ordinance, 2012.
5. The Sindh Civil Servants (Amendment) Act, 2013.
6. The Sindh Civil Servants (Second Amendment) Act, 2013.
2. In order to appreciate the issues raised in these proceedings, it is necessary to depict the material facts giving rise to the promulgation of these legislative instruments. The Governor of Sindh on 22.01.2002 amended the Sindh Civil Servants Act, 1973, (hereinafter referred to as the "Act of 1973") by Sindh Civil Servants (Amendment) Ordinance, 2002. It provided that after Section 9, following new Section 9-A shall be inserted:
"9-A Notwithstanding anything contained in this Act or any other law for the time being in force or any judgment of any Court, a civil servant who provenly exhibits the act of gallantry while performing his duties or very exceptional performance beyond the call of duty, may be granted out of turn promotion or award or reward in such manner as may be prescribed."
The Governor of Sindh on 26.02.2008 amended Act of 1973 through the Ordinance, III of 2008, omitting Section 9-A. This Ordinance, III of 2008 was not placed before the Provincial Assembly within the period of three months, as such the Ordinance, III of 2008 lapsed by operation of law and the original Section 9-A which was protected by the 17th Amendment made in the Constitution under Article 270-AA, stood revived.
3. Before 22.1.2002, there was no provision in the Sindh Civil Servants Act relating to out of turn promotions. It was only Section 8-A in the Punjab Civil Servants Act (VIII of 1974) which empowered the Punjab government to grant out of turn promotions. The cases of out of turn promotions in the Sindh Police emerged in the Constitution Petitions No. 1595 of 2002 along with Constitution Petitions No. 434, 954, 987, 1081, 1095, 1153, 1536, 2341 and 2342 of 2008 before the Sindh High Court when a learned Division Bench of the Sindh High Court, vide its judgment dated 31.3.2009, allowed the Government of Sindh to revive Rule 8-B of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 (hereinafter referred to as the "Rules of 1974"), with the direction that the cases of out of turn promotions be examined by a committee to be constituted under Rule 8-B and any person aggrieved by the decision of the committee, may approach the appropriate forum for redressal of his grievance.
4. This judgment of the Sindh High Court, was challenged by the aggrieved police officers before this Court, however, the petitions were withdrawn by them on the ground that they will seek review of the said judgment from the Sindh High Court. The Petitioners filed review applications which were disposed of on 21.4.2011 by the Sindh High Court in the terms contained in the judgment dated 31.3.2009. The Sindh Government in compliance with the directions in the aforesaid judgment revived Rule 8-B of the Rules of 1974, but the committee did not scrutinize the cases of out of turn promotions. In order to appreciate the controversy between the parties, the Sindh High Court in the said judgment held as follows by:--
3. At the outset, learned Addl. A.G. Sindh has extended a proposal for the just, fair and equitable redress of the grievances of all the petitioners in these petitions. According to him, these petitions can be disposed of in the terms that the Government of Sindh may be directed to immediately revive the earlier Rule
8-B in the Rules of 1974 introduced by notification dated 10.02.2005 and thereafter to examine individually all the cases of the police officers, who have been awarded promotions after introduction of Section 9-A in the Act of 1973, without following the guidelines and the procedure laid down in the said rule, which facilitated some of the respondents to get out of turn promotions due to their influence and contacts and in the same manner also to examine the case of the other petitioners, who were denied such right on the premises that after 11.05.2005, Rule 8-B was no more in force, therefore, promotion in terms of Section 9-A was not warranted.
8-B in the Rules of 1974 introduced by notification dated 10.02.2005 and thereafter to examine individually all the cases of the police officers, who have been awarded promotions after introduction of Section 9-A in the Act of 1973, without following the guidelines and the procedure laid down in the said rule, which facilitated some of the respondents to get out of turn promotions due to their influence and contacts and in the same manner also to examine the case of the other petitioners, who were denied such right on the premises that after 11.05.2005, Rule 8-B was no more in force, therefore, promotion in terms of Section 9-A was not warranted.
4. Mr. Khalid Jawed Khan supporting the proposal of the learned Addl. A.G., contends that in case such proposal gets approval of this Court, the petitioners will not be pressing the relief of declaration that Section 9-A of the Act of 1973 is ultra vires to the provisions of the Constitution of Islamic Republic of Pakistan, 1973, though otherwise, releasing its weak legal position, even the Government of Sindh had issued Ordinance, III of 2008, to omit Section 9-A (ibid). He further clarifies that since this ordinance was not placed before the Provincial Assembly for approval, thus it stood expired after 90 days from the date of its issue.
5. The other counsel present in Court representing petitioners and respondents, are in agreement with the proposal of the learned Addl. A.G. as well as the submission of Mr. Khalid Jawed Khan, except Mr. Arshad Tanoli, advocate, who submits that following the principle of locus poenitantiae, his clients, who have already earned the promotion, are protected, therefore, there is no need of reopening of their cases after lapse of considerable time.
6. After careful consideration of his submission, we are of the opinion that a person/litigant, who has availed benefit for promotion under Section 9-A without application of the criteria laid down under Rule 8-B by way of underhand means or by any mode other than merit, cannot get protection of such benefit on the principle of locus poenitantiae, unless he could show that the benefit availed by him was in accordance with law; in good faith and without any ulterior motive or mala fide. In this regard, we seek guidance from a recent judgment of the Hon'ble Supreme Court of Pakistan in the case of Farhat Abbas vs. I.G. and others (2009 S.C.M.R. 245), which also relates to the out of turn promotion in the Police Department, and lays down as under:
"7. The order was recalled by the authority assigning valid reasons to differentiate and to follow the parameters of reward on account of bravery and gallantry as well as appreciation for performance of duty diligently but with due regard to the extent of such appreciation to commensurate with the degree of merit involved. Undoubtedly performance of duty with due diligence and efficiently deserves due appreciation but it cannot be over appreciated out of proportion so as to make out case a grievance to the other employees in service of the department. It a case of glaring favouritism is made out resulting in a mala fide action as in the instant matter, it has to be rectified in accordance with law to avoid any injustice. Such a valid order cannot be set aside merely on conjectures or surmises as such practice would encourage a person to obtain any order using underhand means or otherwise and then claim immunity for such acts which would, therefore, result in rewarding the person using such means by allowing him to continue to enjoy fruits of such ill-gotten gains and thus, perpetuate injustice."
To add force to this view and disapprove the contention of Mr. Tanoli about the applicability of principle of locus poenitantiae to the case of petitioners falling under the second category of petitions, cases of Nazir Ahmed Panhwar vs. Government Of Sindh Through Chief Secretary, Sindh and others (2005 S.C.M.R 1814) and Abdul Haque Indhar and others vs. Province of Sindh Through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 S.C.M.R. 907) may also be referred here with advantage.
7. After careful consideration of the proposal extended by Mr. Abdul Fateh Malik, learned Addl. A.G. which is consented by other counsel, except Mr. Arshad Tanoli, we find it just, equitable, fair and practical to redress the grievance of all the petitioners, who are agitating against the out of turn promotions awarded to some other officers in the Police Department, without meeting the requirement and following the procedure prescribed under Rule 8-B of the Rules of 1974.
8. This being the position, we are inclined to accept such proposal and dispose of these petitions in the terms that the Government of Sindh shall take immediate steps for the revival of Rules 8-B, which is even otherwise requirement of law in view of the clear language of Section 9-A (ibid) r/w Section 2(g) of the Act of 1973, in the same lines as already available in the notification dated 10.02.2005. It is painful to observe here that the scheme of working of Section 9-A of the Act of 1973 set out under Rule 8-B (ibid) was disturbed and upset by the then Chief Minister, Government of Sindh at his whims by its illegal cancellation within three months of its introduction, which is evident from his order dated 24.04.2005.
9. We expect that such exercise will be completed by the Government of Sindh within 60 days from the date of this order, whereafter the cases of all the police officials, who are petitioners/respondents in these petitions and have been promoted or deprived promotion after the insertion of Section 9-A, will be re-examined by the committee duly constituted under Rule 8-B, strictly in the light of such rule on merits. Till such exercise is completed by the committee, as an interim arrangement the promotions already granted to some of the Police Officials, will not be disturbed."
5. The Government of Sindh vide its Notification dated 7.01.2010, repatriated certain deputationists to their parent departments, who were working in the Sindh Government. These deputationists impugned the notification of repatriation in C.Ps.No. D-57 etc before the Sindh High Court at Karachi. On the other hand, the civil servants of the Sindh Government also preferred C.Ps.No. 678 of 2009 etc, inter alia, on the ground that the deputationists appointed by the Sindh Government, lacked the requisite qualifications and experience for the posts against which they were working, resulting in infringement of their valuable rights guaranteed under the law. The learned Sindh High Court, by its judgment dated 06.05.2010, dismissed the writ petitions of the deputationists and allowed the writ petitions of the civil servants of the Sindh Government holding therein that deputationists have no vested right to stay in the Sindh Government besides their induction in different departments in the said Government infringes the right of promotion of civil servants of the Sindh Government.
6. Another Constitutional Petition No. 1491 of 2010 was filed by Syed Imtiaz Ali Shah and others against the Sihdh Government before a Division Bench of the Sindh High Court at Hyderabad, challenging the appointment of Abdul Hameed Abro, EDO, (Finance, Planning & IT), Tando Muhammad Khan, who was an officer of the Income Tax Group and was transferred and posted as E.D.O (Finance, Planning and I.T) on deputation in the Sindh Government. It was pleaded in the writ petition that the appointment of Abdul Hameed Abro, was in violation of judgments of the learned Sindh High Court as well as of this Court. During the hearing of the writ petition, Secretary Services, Government of Sindh appeared in Court and placed a list of 152 non-cadre officers, who were working in the Sindh Government on cadre posts or field assignments either on deputation or through transfer basis. The Secretary, Services conceded that the deputationists were not qualified to hold the posts against which they were working. By judgment dated 14.12.2010, the learned Division Bench accepted the writ petition and directed the Sindh Government to repatriate all the deputationists to their parent departments and transfer the officers to their own cadres, within 15 days of the communication of the judgment. It was further directed in the judgment that the Sindh Government shall refrain from issuing posting orders of any non-cadre officer to a cadre post by transfer under Section 10 of the Civil Servants Act nor shall it depute by transfer any officer from occupational group of the Federal Government or from autonomous body in the Sindh Government except in exigency unless the deputationist meets the criteria of matching qualifications, eligibility and experience to the proposed post.
7. The aforesaid judgment of the Division Bench of the Sindh High Court was challenged before this Court in Civil Petitions No. 802-K of 2010 and 4-K of 2011 by some of the deputationists namely Javed Ahmed and others. On 10.1.2011, this Court refused leave to the petitioners, affirming the findings of the learned Sindh High Court in C.P.No. 1491-D of 2010. It is pertinent to mention here that the Sindh Government did not challenge the judgment of the Sindh High Court.
8. In the year 2009, Dr. Nasimul Ghani Sahito and others filed Constitution Petition No. D-932 of 2009 before the Sindh High Court challenging the absorption of 12 officers in the Sindh Government. On 2.4.2011, the writ petition was allowed and all the officers except two were ordered to be repatriated to their parent departments. The respondents/absorbees challenged the said judgment of the Division Bench before this Court whereas one of the petitioners Dr. Nasimul Ghani Sahito also challenged the absorption of one of the absorbees namely S.M. Kaleem Makki. This Court granted leave in all these petitions and the appeals were numbered as 404-K, 405 to 413-K and C.A No. 12 of 2012.
9. During the pendency of the aforesaid appeals before this Court, the Governor Sindh on 4.5.2011, promulgated the impugned Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011, through which the employees of Federal Government, Corporation, Council, statutory body or any authority absorbed in the Sindh Government as civil servants on or before commencement of the said Ordinance, were validated granting them backdated seniority from the date of their absorptions. On 15.6.2011, as a corollary to this Ordinance, the Sindh Provincial Assembly promulgated the impugned Sindh Civil Servants (Regularization of Absorption) Act, 2011, through which it granted validation to all the employees absorbed at times, granting them backdated seniority from the date of their absorption.
10. On 16.6.2011, Farooq Azam Memon and others filed Constitution Petition No. 71 of 2011, in this Court challenging the vires of the Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011, and Sindh Civil Servants (Regularization of Absorption) Sindh Act, 2011. Some of the appellants, who have challenged the judgment of the Division Bench in Constitution Petition No. D-932 of 2009 sought withdrawal of their appeals with the option of revival, after decision of Constitution Petition No. 71 of 2011 and Civil Appeal No. 12 of 2012, in which the vires of afore- referred instruments were challenged. This Court disposed of the appeals of the appellants allowing them such option. This Court fixed the Constitution Petition No. 71 of 2011, by its order dated 2.5.2012. All these matters are listed for hearing before this Bench.
11. On 14.03.2012, while hearing Suo Moto Case No. 08 of 2011 at Karachi, the Bench of this Court noticed that Mr. Agha Abid Hussain an employee of Pakistan Telecommunication Corporation was transferred on deputation and posted as Regional Director Sindh Building Control Authority, Sukkur in defiance of this Court’s judgment passed in Civil Petition No. 802-K of 2010 and 4-K of 2011. The Additional Advocate General appearing in the matter was directed to file statement justifying his deputation. The Bench further directed the Chief Secretary and the Secretary Services, Sindh Government to appear in Court with the list of all those officers, who were working on deputation in different departments in the Sindh Government. The matter was adjourned to 15.03.2012.
12. On 15.03.2012, in the aforesaid Suo Moto case No. 08 of 2011, a report in regard to deputationists working with the Government of Sindh was placed. The Advocate General conceded that some officers were not repatriated to their parent departments and he undertook that such orders will be complied with by the next date of hearing.
13. On 16.03.2012, the Advocate General placed before the Bench of this Court at Karachi, the list of 109 officers who were posted on deputation in the Sindh Government. The Advocate General also made a statement which was incorporated in the Order that the Chief Minister of Sindh did not accord approval to the summary of any of these officers. It was noticed by the Bench that the Sindh Government has willfully withheld the names of many officers, who were working on deputation and an incomplete list was placed before the Sindh High Court hearing C.P.No. D-1491 of 2010. After the judgment in the aforesaid Petition and in the intervening period, instead of complying with the directives contained in the judgment, the Government of Sindh has further inducted/deputed employees from different departments/organizations in defiance of the Courts orders. The Notification of 15th March 2012 was placed before the Bench of this Court reflected that the officers who were ordered to be repatriated to their parent departments and or working in the non-cadre posts were absorbed against cadre posts without lawful justification. As a result, the office was directed by the Bench to place a separate note before the Honourable Chief Justice of Pakistan with the relevant record for appropriate orders in the matter. This being the important order is reproduced for convenience:--
"Today the learned Advocate General has filed a Notification dated 15.3.2012 in regard to repatriation of 81 officers/officials, who after the Judgment of this Court dated 10-1-2011 passed in Civil Petitions No. 802-K of 2010 and No. 4-K of 2011 titled as Javed Ahmed and others vs. Government of Sindh, had been posted out of cadre, from Government of Sindh to their parent departments.
2. In these proceedings, on 14-3-2012 we queried the learned Additional AG, Mr. Miran Muhammad Shah, as to how Mr. Agha Abid Hussain, Additional Director, SBCA, Sukkur, who was present in Court and was previously employed in the Pakistan Telecommunication Corporation was posted on deputation as Regional Director, SBCA, Sukkur in clear violation of the aforementioned Judgment of this Court whereby Judgment of the learned Sindh High Court (Circuit Bench Hyderabad) passed in sCP No. D-1491 of 2010 on 14-12-2010 on the issue, was affirmed. The learned Additional AG sought time and matter was adjourned for 15-3-2012, when the Chief Secretary and the Secretary Service (SGA&CD), Government of Sindh alongwith learned Advocate General have appeared and a formal report of deputationists working in Government of Sindh was placed before us. However, the matter was adjourned to 16-3-2012 with direction to submit a comprehensive report/list of all those officers who are working in Government of Sindh on deputation/inducted from other departments/organizations after the Judgment of this Court referred to herein-above.
3. The report submitted by the Advocate General today depicts that all Government of Sindh in defiance of the aforementioned Judgment of this Court has inducted and or posted on deputation as many 109 officers/employees for which no explanation of any nature has been given by the Secretary (Services). The learned Advocate General, Sindh, however, has made a statement that the Chief Minister, Sindh, did not accord approval to any summary in this regard.
4. Earlier, the Secretary (Services) had furnished a list of such officers/employees, before the Sindh High Court in CP No. D-1491 of 2010, which was reproduced by the learned High Court in its Judgment dated 14-12-2010. Out of the said list many officers were not relieved/repatriated by the Government of Sindh in defiance of the directives of the High Court and this Court, inter alia, on the ground that some of them were absorbed under Sindh Civil Servants (Regulation of Absorption) Act, 2011. In all there were ten police officers who are claimed to have been absorbed in the Sindh Government after the Judgment. It was further stated in the report that three Police Offices were absorbed under the directives of the Sindh High Court passed in CP No. D-500 of 2010 and No. D-420 of 2009.
5. We do not want to further dilate upon the acts of the Sindh Government on this issue. In fact the Law Officers appearing different proceedings filed by the Officers before the Sindh High Court have conceded to the absorption, in contradiction to the plea taken by the Sindh Government before the High Court during hearing in CP No. D-1491 of 2010. There were many other officers who on account of their influence in the Government were not mentioned in the first list provided by the Secretary (Services). In the intervening period, instead of complying with the aforementioned Judgment of this Court, the Government of Sindh has further inducted/deputed officers from other departments/organizations, which act ex-facie is contemptuous and derogatory. We still believe that a number of officers/employees whose names do not appear in the list provided by the Secretary (SGA&CD) have been inducted in the same manner from different departments and or organizations bypassing the service rules and procedures as the Secretary (Services) might not have been provided correct information from all the departments, particularly, Home, Police, Law, Local Government, etc. Even the list submitted was otherwise incomplete.
6. If such actions of the Government of Sindh are allowed to be perpetuated it would destroy the institutions and paralyze the system. This would do away with the fundamental right of promotion of incumbents who have been working in the Sindh Government for years together. The scheme of Service Law provides such protection. Additionally after the Judgment of this Court the Sindh Government was directed to repatriate the deputationists but instead they have inducted deputationists and in some cases absorbed them permanently in order to frustrate the Judgment of this Court.
7. Under these circumstances, we feel that actions on the part of Sindh Government warrant interference by initiating contempt proceedings against those who are guilty of willful defiance of the directions of this Court as mentioned hereinabove. The Notification dated 15-3-2012 placed before us today by which Sindh Government has ordered repatriation of 81 out of cadre officers/officials will not, prima facie, absolved them from facing the contempt proceedings as the Judgment of this Court and Judgment of the Sindh High Court, referred to above, have not been complied with in letter and spirit.
8. Consequently, office is directed to place this order before the Honourable Chief Justice in a separate file, alongwith the orders passed by us on 14-3-2012, 15-3-2012, copies of the Judgments of this Court in CP No. 802-K of 2010 and 4-K of 2011 and of Sindh High Court (Hyderabad Circuit Bench) passed in CP No. D-1491 of 2010, reports submitted by the Secretary (Services) SGA&CD through Advocate General, Sindh on 16-3-2012 beside other notification dated 15-3-2012 for passing appropriate orders in the matter.
For lack of time, main case is adjourned to next sessions."
14. The Hononurable Chief Justice of Pakistan after perusal of the aforesaid order of the Bench passed in S.M.C.No. 8 of 2011 approved initiation of contempt proceedings against the Chief Secretary, Home Secretary and I.G.P Sindh, inclusive of two officers namely Shahid Hussain Mahesar and Shiraz Asghar Sheikh.
15. Pursuant to the aforesaid orders of the Honourable Chief Justice of Pakistan, the office converted the note in Criminal Original and numbered it as Criminal Original No. 89/2011. On 2.5.2012, the matter was fixed before a Bench of this Court at Karachi Registry. The Secretary Services put in appearance and informed the Court that as many as 205 officers are working on deputation in the Sindh Government, out of whom the Sindh Government intends to retain 12 officers and rest would be repatriated to their parent departments. The Bench inquired from the Secretary Services to justify their transfer on deputation after the judgment of this Court and as to whether the officers, who were transferred on deputation fulfilled the required criteria laid down in the judgments. He could not offer any plausible explanation. The Secretary Services, has placed before the Court three lists of the officers which included the names of the officers, who continued on deputation after the directives of this Court, and other two lists reflected the names of the officers subsequently transferred on deputation in the Sindh Government. This Court directed that all the officers mentioned in the lists shall stand relieved to join their parent departments except those who were absorbed by the Sindh Government under the Act, XVII of 2011, vires of which enactment were challenged in Constitution Petition No. 71 of 2011 and Civil Petition No. 926 of 2011, before this Court, in which leave to appeal was granted. The officers who claimed to have been absorbed were directed to join the aforesaid proceedings through the said order, however, 8 officers were allowed to be retained by the Sindh Government till the completion of the different projects on which they were working. The Accountant General and Finance Department, Government of Sindh, were directed to stop the salaries and perks of all the officers named in the aforesaid three lists, with the exception of those, who were ordered to be retained and or absorbed by the Sindh Government under the afore-referred enactment. A show cause notice was issued to the Chief Secretary in terms of Section 17(3) of the Contempt of Court Ordinance 2003, to appear and explain as to why contempt proceedings should not be initiated against him for willful defiance of the Court’s order.
16. On 03.05.2012, the Chief Secretary appeared and tendered an unconditional apology, which was accepted by this Court. A statement was made on his behalf that the officers named in the lists had been relieved in compliance with the orders of this Court passed on 02.05.2012. The Chief Secretary was directed to ensure that the committee constituted under Rule 8-B complete the scrutiny of the out of turn promotions granted to various officers in the Government of Sindh and submit a compliance report.
17. On 04.05.2012, some of the deputationists who were ordered to be repatriated made applications to this Court, inter alia, on the ground that they were also absorbed by the Sindh Government.
18. On 24.05.2012, the Secretary Services appeared in Court and submitted a list of 235 officers working on deputation and were repatriated to their parent departments. Again on 30.08.2012, this Court was informed that some of the deputationists ordered to be repatriated have obtained restraining orders from the Sindh High Court against the Notifications issued by the Sindh Government, pursuant to the directives of this Court. The R & Ps of such cases were called from the Sindh High Court and ultimately, the deputationists who obtained interim orders withdrew their petitions from the High Court and relinquished their charge.
19. On 04.09.2012, the Government of Sindh promulgated Sindh Civil Servants (Amendment) Ordinance, 2012, by which powers were conferred on the Chief Minister to order deputation, absorption, re- employment, appointment on contract and out of turn promotions in the Sindh Government. This Ordinance was followed by another Ordinance called Sindh Civil Servants (Second Amendment) Ordinance, 2012, whereby exclusive powers were conferred on the Chief Minister Sindh, to grant out of turn promotions in the Sindh Police. These Ordinances were challenged before this Court by the civil servants through different petitions/applications agitating their grievance to be joined as party to the proceedings.
20. On 06.09.2012, this Court while hearing Criminal Original Petition No. 89 of 2011 and other connected cases, passed the following order:--
"In view of the two Ordinances issued by the Governor Sindh in the last two/three days, learned Advocate General, Sindh and other learned ASCs for the parties appearing in these matters request for time to study these Ordinances and their effect on the pending litigation. Adjourned. Personal appearance of the Chief Secretary, Inspector General Police Sindh, Home Secretary and Secretary Services is dispensed with till further orders
C.M.A.No. 324-K of 2012
Learned ASC for the applicants/interveners in C.M.A.No. 324-K of 2012, in view of the Amending Ordinances issued by the Governor Sindh yesterday, providing room for regularization of all out of turn promotions under Section 9-A of the Sindh Civil Servants Act, 1973 before commencement of this Ordinance, seeks permission to withdraw this application for the time being to pursue their case before the Provincial Government. Such request is acceded to and this C.M.A is dismissed as withdrawn.”
21. Again on 26.02.2013, a Bench of this Court at Karachi while hearing the Criminal Original Petition No. 89 of 2011 and other connected matters passed the following order:--
"Today, when this petition and other connected petitions have been taken up for hearing Mr. Abdul Fateh Malik, learned Advocate General, Sindh has placed on record a copy of "The Sindh Act No. I of 2013 promulgated by the Provincial Assembly of Sindh, Gazetted on 21st February 2013.
2. Keeping in view the grievances of the petitioners qua the import of such legislation made by Sindh Government, we deem it fit, rather necessary to examine the vires of this amending enactment (Sindh Act No. 01 of 2013), inter alia, on the touchstone of Articles 3, 4, 8, 9 and 25 of the Constitution. In order to enable learned Advocate General to make his submissions in this regard, hearing of these cases is now adjourned for the next session of this Court at Karachi Registry, M/s Abdul Hafeez Pirzada and Munir A. Malik, Sr. ASC’s are nominated as Amicus Curaie to assist the Court to the extent of the above posed question of law."
22. During the hearing of the Criminal Original Petition No. 89 of 2011, the Court was informed that the Provincial Assembly has promulgated another Act, XXIV of 2013 by which further employees from different departments/ organizations were absorbed and regularized in the Sindh Government. The said enactment was also placed on record. Finally, on 09.04.2013, the Secretary Services was directed to submit before this Court, the following information:--
(i) The names of the deputationists, who were absorbed by the Government after order of this Court relieving them to join their parent departments with their dates of absorption.
(ii) The names and the details of the officers with their dates of absorption, who were absorbed by the Government from non- cadre to cadre postings mentioning dates of their absorption and the office they were holding prior to their absorption.
(iii) The names of all the officers, who were absorbed by the Government from 2008 till 16th March 2013 with the details of their previous office and the dates with the details of the office in which they were absorbed.
(iv) the names of officers, who were granted out of turn promotions from 31.3.2009 after the judgment of full Bench of the Sindh High Court in C.P.No. D-1595 till 16th March 2013.
(v) The names of the officers who were transferred and posted from 15th February 2013 till 16th March 2013 to different office mentioning their previous postings with the dates of their transfer.
(vi) The details of the officers, who are working in OPS mentioning their actual grades and also mentioning the grades to which they are posted against.
(vii) The names of the persons who were appointed by the Government from Ist January 2013 till 16th March 2013 and the mode and manner in which the appointments were made.
23. On 13.04.2013, the Secretary Services filed his report containing details sought by the Bench. The Court incorporated the details in its order, relevant portion of which is reproduced here-under:--
"The Secretary Services states that in all there were 567 officers, who were placed on deputation by the Sindh Government. Out of these officers, many of them were relieved at times and on 2.5.2012 there remained 235 officers, who were on the deputation. Out of the aforesaid 235 officers, 43 were retained on deputation after they were ordered to be relieved by this Court on 2.5.2012 and subsequently were absorbed pursuant to the Ordinance issued on 4th September 2012 and the enactment dated 16th March 2013. He further submits that this Ordinance and the Act, which were passed on the dates mentioned hereinabove, absorbed the officers other than Mr. Ayub Sanjrani, Abdul Hameed Alvani, Saifullah Billo and Abdul Wahab Shaikh. According to him, these four officers, who are included in the absorption list were absorbed subsequent to the enactment and are not covered by the aforesaid instruments. He submits that this was done by the former Chief Minister. He next contended that in all 66 officers who were absorbed by the Provincial Government, which includes 43 officers and their names have been shown in Annexure "IV" of C.M.A.No. 264-K of 2013 (Part-1). According to him, this list also includes the names of the officers who were absorbed from non-cadre posts to cadre posts. According to him as far as the list containing the names of officers from January 2008 till 16th March 2013 is concerned, according to him, there are in all 179 officers, who were absorbed from January 2008 to March 2013, this number includes 66 officers, who have been mentioned in Annexure "V". He further submits a list of 179 officers, shown as Annexure "VI" to the aforesaid CMA, does not only includes the names of officers, but also subordinate staff, which was absorbed after closure of the Departments. These non-gazetted officers were placed in the surplus pool of the S&GAD and were absorbed in different Departments."
24. On 16.04.2013, these proceedings were fixed in Court at Islamabad. We informed the parties that we will be examining the vires of all the instruments referred to in Para-1 of this judgment inclusive of the 2nd Amendment Act, 2013 passed on 16.03.2013. The Advocate General/Additional Advocate General, Sindh, present in Court were put to notice. The impugned legislative instruments were already placed on record by the government through the Advocate General besides the private parties. Before calling upon counsel representing private parties, we first called upon Mr. Sarwar Khan, the learned Additional Advocate General Sindh, to submit his contentions in support of the impugned enactments. He contended that Articles 101 to 128 empowers Provincial Assembly to promulgate law.
25. He next contended that the impugned instruments were promulgated for the benefit of the general public keeping in view the public interest of the civil servants. He further contended that the instruments were required to be promulgated to remove the anomaly which occurred due to various judgments of this Court and of the Sindh High Court. He further contended that the absorption of the employees under the impugned instruments was ordered with the object to condone illegalities and irregularities to bring home unrest amongst the civil servants. He submitted that the legislative competence of the Assemblies cannot be examined by this Court nor mala fide can be attributed to the legislature. In support of his contentions, he has relied upon the cases of Messrs Elahi Cotton Mills Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582), Haji Ghulam Rasul vs. Government of the Punjab (2003 SCMR 1815), Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457).
26. Mr. Sarwar Khan next contended that the first impugned Ordinance/Act promulgated in 2011 validates absorptions of the different employees from 1994 to 15.6.2011 and cannot be construed either discriminative in terms of Article 25 and/ or violative of the Article 8(2) of the Constitution. When confronted as to explain reasons for promulgating six instruments from 15.06.2011 to 21.03.2013, on the common issues already decided by the Sindh High Court and this Court, he could not offer any explanation except submitting that the Provincial Assembly/Governor was competent under the Constitution to promulgate the impugned instruments.
27. Ch. Afrasiab Khan, learned counsel for the petitioners in C.P.No. 71 of 2011, C.A.No. 12 of 2012 and C.P.No. 21/2003 has contended that the impugned Act/Ordinance of 2011 ex-facie are ultra-vires of the fundamental rights guaranteed under Articles, 2-A, 4, 8, 14, 25, 175, 240, and 242 of the Constitution. He submitted that the issue of illegal absorptions which started since 1994 was first challenged by the aggrieved employees in Constitution Petition No. 960 of 1996 and by order dated 28.03.1997, the Sindh High Court disposed of the petition in the light of the summary floated by the department to the Chief Minister on 22.03.1995, the relevant portion of the summary is reproduced herein-below:--
"4. In fact absorption of above named officers is not covered by the rules, even Section 24 of the Sindh Civil Servants Act would not be of any avail in the case of absorption of these officers who were not civil servants. The Law Department has also confirmed this point of view (F/`B'). The High Court of Sindh in Constitution Petition No. D-385 of 1991 (Mr. Liaquat Ali Baloch v/s Government of Sindh and others) has observed that no doubt Section 24 of Sindh Civil Servants Act gives a blank cheque to the Government to deal with a civil servant in such a manner as may appear to it to be just and equitable, there must be some rational for it and discretion so conferred upon the Government may only be used judicially and not arbitrarily. Moreover, the appointments made without observing formalities and proper procedure have been held violative of Fundamental Human Rights by the Supreme Court of Pakistan.
5. Though the appointment/absorption of above officers is not covered under the rules as pointed out by the petitioner, their right has accrued to hold the posts. Therefore we cannot at this stage, terminate their service or withdraw the subject notifications. However, it is advisable to refrain from such appointments in future.
6. The position is submitted to the Chief Minister, Sindh for his kind perusal and further orders."
28. The learned High Court in its concluding Para, reproduced hereunder, has observed as under:--
"In these circumstances, we would direct that within a month's time in case no decision has been taken on the petitioner’s referred appeal, such would be taken and communicated to the petitioner. Alternatively, if decision has been taken but has not been communicated, due communication to the petitioner would follow within the same period. That being done and the matter pertaining to the terms and conditions of the service of the petitioner, which apparently seem to have been adversely affected, the petitioner would be free to go to the Sindh Service Tribunal in accordance with the relevant provisions.
Meanwhile, as indicated in Para 5 of the aforesaid Summary, no absorptions, clearly accepted to be illegal, would be made."
29. The learned High Court disposed of the aforesaid Petition restraining the Government that no further absorption would be made in terms, as indicated in Para-5 of the Summary reproduced hereinabove. The learned counsel submitted that since 1994 the affectees have not challenged the absorptions of the employees made by the Sindh Government. According to him, the act of absorption of the Sindh Government was challenged by the affectees and inspite of the restraining orders, the Sindh Government kept on absorbing their blue-eyed in defiance of the Civil Servants Act and the Recruitment Rules. He contended that the provisions of Section 24 of the Act of 1973 cannot be resorted to, to cure the inherent defects surfacing absorption. While advancing his arguments, he has contended that a Division Bench of Sindh High Court in C.P.No. D- 932 of 2009 while interpreting Section 24 of the Civil Servants Act has held that the powers of the competent authority were very limited and unless the conditions/precedents provided under Section 24 are fulfilled the absorption made, would be illegal. He contended that the provisions of Section 24 of the Act of 1973 required two pre-conditions to allow the Competent Authority to exercise powers of absorption. In the first place, the powers have to be exercised by the Government through a committee and not by the Chief Minister as an individual. Secondly, person in whose favour such residuary powers are exercised must be a civil servant as defined under the Sindh Civil Servants Act or rules framed there-under. Additionally, such powers have to be exercised in a manner as it appears to be just and equitable. According to him, the act of absorption in the absence of the aforesaid conditions, as contemplated under Section 24 of the Act of 1973, would be construed to be colourable exercise of power.
30. He next contended that the impugned Ordinance 2011 which was subsequently converted into the impugned Act, XVII of 2011 by the Sindh Assembly violates the scheme of service law guaranteed by the Constitution in terms of Article 240 and 242 of the Constitution. According to him, any law passed by an Assembly and /or Parliament can be examined by this Court, in case if such law is violative of the fundamental rights. He has contended that in the case in hand, neither the impugned Ordinance nor the impugned Act provides the definition of the term "absorption" nor the basis on which the employees, who were not even Civil Servants, were ordered to be absorbed. The impugned legislation has validated absorption of all the employees, without providing protection to it. The learned counsel submitted that the absorption of the employees by the Sindh Government was in conflict with the Act of 1973 and the rules framed there-under.
31. The learned counsel Chaudhry Afrasayab has further contended that the concept of absorption is foreign to the Act of 1973 and the rules framed thereunder. It is only in exceptional cases, where the departments are closed and/or the civil servants in the said department becomes surplus, a surplus pool is created from where these surplus employees can be transferred and posted to other departments subject to their matching qualifications, eligibility and experience, as provided under Rule 9-A of the Rules of 1974.
32. According to the learned counsel, the impugned Ordinance/Act which validates the absorptions is against the basic structure of the Civil Service laws. He submits that Article 240(b) of the Constitution provides the mechanism for appointment to the Service of Province and the posts in connection with the affairs of a Province, whereas Article 242(1B) provides the appointment of the Chairman of Public Service Commission constituted in relation to the affairs of a Province to be appointed by the Governor on advice of the Chief Minister. The Article 242 (2) provides constitution of Public Service Commission entrusted with the powers prescribed by the rules. According to him, pursuant to the mandate of the Constitution, Public Service Commission has been constituted, which is entrusted with the powers to recommend recruitment of the civil servants under the prescribed rules. These recruitment rules are Bible of the civil service structure and no other method parallel to the recruitment rules can be adopted to extend favours to some of the employees by allowing them to be absorbed in the provincial service without recourse to the competitive process through Public Service Commission. He submits that the competence of the legislature, to legislate law is not un-restricted. The learned counsel has referred to the Act of 1973 which defines the selection authority in terms of Section 2(3)(i). Section 5 of the said Act prescribes the manner in which the appointments are to be made and Section 6 speaks of initial appointment. He submits that the Sindh Government has bypassed the required procedure and without amending the Act of 1973 and/or rules framed there-under has promulgated the impugned Act, 2011, which has impaired the fundamental rights of the civil servants.
33. According to the learned counsel the illegal absorptions of the employees could not be given blanket cover by the impugned validation instruments, particularly when such absorbees did not have the matching qualifications, eligibility and competence to be absorbed against the posts, which otherwise could only be secured under the recruitment rules through the competitive process.
34. His next contention was that these impugned legislative instruments were promulgated to defeat and nullify the judgments of this Court and the Sindh High Court on the issue of absorption. He submitted that those who have been absorbed, many of them were deputationists, non-civil servants and were ordered to be repatriated to their parent departments by the Courts. He submitted that the impugned legislative instruments contain non-obstante clause which by itself is violative of the scheme of trichotomy of power provided by the Constitution. In support of his arguments, he has relied upon the cases of Dr. Mobashir Hassan vs. Federation of Pakistan (PLD 2010 SC 265(372)), The Province of Punjab vs. National Industrial Co-operative Credit Corporation (2000 SCMR 567 (597)), Raj Narain vs. Smt. Indira Nehru Gandhi (AIR 1975 SC 2299(2346), Capt. (r) Abdul Qayyum vs. Muhammad Iqbal Engineer (PLD 1992 SC 184) and Muhammad Nadeem Arif vs. Inspector General of Police, Punjab Lahore (PLC 2010 CS 924).
35. Dr. Farogh Naseem, learned counsel for Ali Haider, the Respondent No. 3 in Constitution Petition No. 71 of 2012 in reply to the arguments of Ch. Afrasiab Khan has contended that the judgment in the case of Dr. Mobashir Hassan does not apply to the controversy raised in these proceedings. He contended that the Act, XVII of 2011 was promulgated on 15.03.2011 with the sole object to remove the defect in the judgment passed on 02.04.2011 in Writ Petition No. 932 of 2009. He further contended that in the Constitution Petition No. 71 of 2011, vires of the Act, XVII of 2011 were challenged, has become infractuous, as on 21.03.2013, the Act, XXIV of 2013 was promulgated which has not been challenged by the petitioner.
36. On query from the Court that if the petitioners have not challenged the subsequent legislation promulgated during the pendency of the proceedings on the same subject, whether this Court in exercise of its suo motu jurisdiction can examine subsequent legislation. Dr. Farogh Naseem fairly conceded that this Court has the power to examine the vires of such legislation. He contended that the Constitution Petition No. 71 of 2012 was not maintainable under Article 184(3) of the Constitution, which has a limited scope. According to him the petitioners have raised individual grievances in the petition which falls outside the parameters of Article 184(3) of the Constitution.
37. While elaborating his arguments on the issue of effect of the judgments of the Courts on the impugned legislative instrumetns, the learned counsel has taken us through the different portions of the judgment in the case of Dr. Mobashir Hassan reported in (PLD 2010 SC 265) to persuade us that the judgment in the said case would extend and apply to the criminal cases and not to a statute governing the rights of civil servants. He next contended that once the legislature has validated the absorption of the employees by promulgating the impugned Act, the Respondents, in law, are entitled to its benefit. He however, submitted that Section 3(2) of the impugned Act, XVII of 2011 which grants backdated seniority to the absorbees under the impugned Act is liable to be struck down. According to him, seniority of an absorbee in the department, to which he is absorbed, has to be kept at the bottom. The previous seniority of such an absorbee cannot be counted in service as it would be discriminatory and against the rights of the employees entered in the encadrement prior in time to the absorbee.
38. He was required by us to formulate his contentions in a manner that all the legislative instruments challenged and/ or examined in these proceedings are covered and all the learned counsel appearing for the parties could advance their arguments on such formulation. He has submitted the following formulations:--
1. Whether the Acts (Act, XVII of 2011 and Act, XXIV of 2013) legislatively annul the judgment dated 14.4.2011 of the Sindh High Court passed in C.P.No. 932 of 2011?
2. Whether any of these statutes is violative of any provisions of the Constitution?
3. Whether any of these statutes can be annulled for being in conflict with the service law and rules operating prior to the said statute?
4. Whether a statute can be struck down on the ground of mala fide of facts? If so.
5. Whether these statutes actually suffer from mala fides of facts?
6. Scope of principle of stare decisis and its application before the Supreme Court?
7. Whether the deputation, absorption, regularization, out of turn promotions, re-employment, contractual/ adhoc employment which are the subject matter of these proceedings can be validated through the impugned statutes?
8. Whether the petitioners having in essence raised their personal grievances through these proceedings can be entertained by this Court under Article 184(3) of the Constitution?
9. Whether the issue of vires of the impugned legislation affect the fundamental rights of the petitioners/civil servants?
39. The learned counsel has advanced his arguments on the issue of absorption only. According to him, the provisions of Article 240(b) do not restrict the provinces from multiple legislation. He contended that Article 142 of the Provincial Legislature grants residuary powers to the Provincial Assemblies whereas Article 242 (1B) and (2) speak of constitution of Public Service Commission, appointment of its Chairman and the functions which the Commission will undertake, as prescribed by the law. According to him, pursuant to this scheme, Sindh Public Service Commission Act, 1989, was promulgated and its Section 7(i) relates to the conduct of test and examination for initial appointments whereas Section 7(ii) provides qualifications and method of recruitment.
40. He further contended that Section 5 of the Act of 1973, speaks of appointments prescribed by Section 2(g) of the Act which refers to the Rules called the Sindh Civil Servants (Appointment, promotion and Transfer) Rules, 1974. He submitted that the impugned Act, XVII of 2011 as well as impugned Act, XXIV of 2013 are parallel statutes to the Act of 1973, having non-obstante clauses, effect of which has been interpreted by this Court in the case of Province of Sindh through Chief Secretary vs. Prosecutor General Sindh (2012 SCMR 307). He contended that introduction of such a non-obstante clause will nullify the effect of Act of 1973, and it can safely be construed that such legislation, in no way, is violative of the fundamental rights guaranteed by the Constitution.
41. Mr. M.M. Aqil Awan learned counsel for the private Respondents namely Dr. Muhammad Ali, Dr. Aftab Mallah, Ghani Jokhio, Ahmed Hussain Solangi, (Respondents in C.P.No. 71/2011) has filed his written arguments in terms of order of this Court dated 30.04.2013, which was numbered as C.M.A.No. 2697 of 2013. Additionally, he has requested the Court to allow him to make oral submissions, which request was acceded to. He contended that the Respondents, whom he represents, were absorbed by the Sindh Government in exercise of powers under Section 24 of the Act of 1973. According to him, Constitution Petition No. 71 of 2011 filed by the petitioners, by which the vires of impugned Ordinance, III of 2011 dated 4.05.2011 and the impugned Act, XVII of 2011 have been challenged, is not maintainable. According to him, through the aforesaid petition seniority, eligibility and promotion of the Respondents have been challenged by the petitioners, which falls within the domain of the Sindh Service Tribunal. According to him, direct petition to this Court would not lie for the redressal of individual grievance of a party. He submitted that the petitioners have challenged the promotion, seniority and eligibility of the Respondents, which fall within the terms and conditions of service, therefore, the petition is not maintainable under Article 184(3) and the petitioners should approach the appropriate forum for redressal of their grievances.
42. His next contention was that there are 30 petitioners in Constitution Petition No. 71 of 2011, who belong to the Provincial Secretariat Service. The question raised in the petition by employees of one cadre would not attract the necessary ingredient, which is the condition precedent to invoke the jurisdiction of Article 184(3) of the Constitution, as the employees of one cadre cannot enlarge the meaning of public interest by directly approaching this Court. In support of his contentions, he has relied upon the cases of Syed Zulfiqar Mehadi vs. P.I.A (1998 SCMR 793 (799)). According to him, in order to exercise jurisdiction under Article 184 (3) of the Constitution by this Court, the issues raised in the petition must pertain to infringement of fundamental rights. According to him, the seniority and the promotion are not vested rights of the petitioners to approach this Court in a constitution petition.
43. He next contended that mala fide cannot be attributed to the legislature nor nullifying a judgment of the Court can be made a ground to strike down the impugned legislative instruments. He submitted that by impugned instruments the absorption of different employees in the Sindh Government has been validated. The petitioners through these proceedings cannot challenge the `absorption' of such employees nor the benefit extended to them can be withdrawn. In support of the contention, he has relied upon the cases of Mazhar Ali vs. Federation of Pakistan (1992 SCMR 435) (440), Province of Punjab vs. Ibrar Younis (2003 PLC (CS) 1357 (1361)), Hussain Badshah vs. Akhter Zaman (2007 CLC 157 (163)), Chairman Minimum Wages Board vs. Fayyaz Hussain (1999 SCMR 104) (106)) and Ghulam Rasool Vs. Secretary, Government of Pakistan Ministry of Defence and others (2011 SCMR 994 (998).
44. Mr. Abrar Hassan, ASC, has filed his written arguments by way of C.M.A.No. 2698/2013 on behalf of Respondent No. 5 in C.P.No. 71 of 2011 and he has submitted that he adopts the arguments of Dr. Farough Naseem, learned ASC, appearing for the Respondents.
45. Mr. M. M. Aqil Awan, learned counsel representing the Respondents in Civil Appeal No. 183-K of 2011 has challenged the vires of the impugned legislation. He has filed his written synopsis by way of C.M.A.No. 2715/2013 and C.M.A.No. 2732/2013. He has requested for oral arguments as well, which request was acceded to. He submitted that he will make his submissions on the issues of deputation, absorption and out of turn promotions. According to him, the Sindh Civil Servants Act does not permit any non-civil servant to be transferred and posted on deputation to any government department in Sindh. According to him, the word `deputation' has neither been defined in the Act of 1973 nor in the rules framed there-under. He contended that the word `deputation' has been borrowed from the Esta Code, which has two parts. The first part deals with the instruments and the other deals with the office memoranda, issued by the Establishment Division from time to time. According to him, entry under Esta Code Edition 2009 Chapter-II at page 425 deals with transfer, posting/deputation. According to him it is only a government servant, who could be transferred on deputation. Such transfer is subject to the process of selection to a post in a department of service, which is altogether different from the one to which he permanently belongs, and the third ingredient for the deputation is that such an officer is entitled to lien as long he holds the new post in an officiating capacity or temporary capacity, but such lien stands terminated either on confirmation in the new post or on reversion to his substantive post. He contended that the definition of "deputation" as provided by the Esta Code was adopted by this Court in the case of Islamic Republic of Pakistan vs. Israr-ul-Haq (PLD 1982 SC 531 (542). He submitted that this definition was further defined in the case of Muhammad Arshad Sultan vs. Prime Minister of Pakistan (PLD 1996 SC 771 (777-B)), which reads "Deputationist is defined to be a government servant, who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be a deputationist unless confirmed in the new post or reverted to his substantive post", following the case of Israr-ul-Haq. In the case of Muhammad Ramzan vs. Government of Pakistan (1999 PLC (CS) 1149 (1153-A)) the aforesaid definition in the case of Muhammad Arshad Sultan was followed. The learned counsel while referring to the aforesaid judgments of this Court has contended that this Court has held that no non- civil servant can be transferred and appointed by way of deputation, in any government department to any cadre and or non-cadre post.
46. He next contended that the Act of 1973 does not define the word `deputationist'. He however, submits that Section 2(1)(b) of the Act of 1973 reads:--
"2.(1) (b) "civil servant" means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include--
(i) a person who is on deputation to the Province from the Federation or any other Province or authority; or
According to the learned counsel, the term `Authority' used in clause (a) hereinabove is used as a tool by the Sindh Government to cover up the illegal transfer on deputation of non-civil servants in Sindh Government. According to him the aforesaid sub-section deals with the person, who is on deputation to the Province from the Federation or any other Province or Authority. He submits that the term `person' used in sub clause (b) (i) of Section 2(1) means a civil servant and does not include an employee of an authority. He has relied upon the judgment in the case of Lal Khan vs. Employees Old Age Benefits Institution (2010 PLC (CS) 1377 (1382)). He submits that in the said judgment, the identical issue was raised and the Advocate General Sindh Mr. Abdul Fatah Malik has made the statement in aforesaid case that there is no mechanism provided under the Rules to regulate the services of the deputationists who are non-civil servants. The learned Division Bench after hearing the Advocate General Sindh has held that a non-civil servant cannot be transferred and posted to the Sind Government by way of deputation.
47. He further submitted that to cater the above deficiency, on 4.9.2012 Ordinance No. VI of 2012, impugned in these proceedings, called as Sindh Civil Servants (Amendment) Ordinance, 2012 was promulgated. In the said Ordinance, Section 2(bb) was inserted which defines the word `deputation' means the posting of a person in accordance with sub-Section 1 of Section 10-A. The Ordinance further introduces Section 10-A and its clause (1) reads:--
"10-A. (1) Notwithstanding anything contained in this Act, or any other law enforced, or any judgment of any Court, Government (C.M) shall have and shall be deemed to always have had the powers to appoint any person on deputation basis, who is civil servant, as defined in this Act, or the Federal Civil Servant Act, 1973, in the service of Government or Federal Government or autonomous, Semi- autonomous Body Corporation or any organization setup, established, owned, controlled or managed by Government or as the case may, the Federal Government against any post in any cadre, in the Civil Service of the Province or in connection with the affairs of the Province".
The aforesaid Ordinance lapsed after 90 days and was never placed before the Provincial Assembly. He next contended that in the case of Safdar Ali Sahito vs. Province of Sindh (2011 PLC (CS) 972(976-e-d)), a learned Division Bench of the Sindh High Court while interpreting `deputation' has held as under:--
"by posting outsiders on the basis of Deputation in various Departments of provincial Government, the changing cadres and inducting/absorbing them in various departments of provincial governments, created unrest and sense of deprivation amongst employees already working there. Authorities were directed to repatriated them. Government in case of exigencies could appoint any person on OPS basis, as a stopgap arrangement or current charge or acting charge or additional charge basis but cannot continue the OPS or Additional Charge for unlimited period of time."
48. According to the learned counsel, the impugned Ordinance contained the conditions that powers of the competent authority were subject to the proviso a, b and c of Section 4 of the Act of 1973. Proviso `a' speaks of minimum qualifications as may be laid down for a person to be appointed to the post. The learned counsel submits that till date the Sindh Government has not framed rules which could define the proposed minimum qualifications of a deputationist mentioned in the Ordinance. He submitted that if any statute is conditional, it cannot be made operative unless the conditions laid down are fulfilled. According to him, Ordinance, VI of 2012 for the aforesaid reason is violative of the Act of 1973 and the rules framed there-under, and does not authorize the competent authority and/or the Chief Minister to order transfer of a non-civil servant in the Sindh Government on deputation.
49. He next contended that the word `absorption' used in the said Ordinance is also a misnomer. Neither the Sindh Civil Servants Act nor the rules framed there-under has given any definition to the term `absorption'. Under Ordinance, VI of 2012, an amendment was brought in the Section 2 sub-section (i) (a) wherein the term `Absorption' was defined which means appointment of a person by way of absorption in accordance with sub-Section 2 of Section 10-A. He next contended that the Sindh Civil Servants Act provides three modes of appointment, which are given in the Rules of 1974. These are:--
1. Recruitment by initial appointment.
2. Appointment by promotion.
3. Appointment by transfer
These appointments are regulated by the Act of 1973. In the case of Iqbal Ahmed vs. Province of Sindh (1996 PLC (CS) 955), a learned Division Bench has defined the word `Absorption', which reads as under:
"Absorption was nothing but appointment by transfer and same could only be made under Rule 9(1) of Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974.
50. He next contended that the issue of absorption was dealt with in a judgment of the learned Division Bench in the case of Deedar Hussain Jakhrani vs. Federation of Pakistan (2011 PLC (CS) 203 R). This Court in the case of Dr. Anwar Ali Sahito vs. Federation of Pakistan (PLD 2002 SC 101 rel. (158-P) has held that "reinstatement and absorption for intents and purposes are synonymous expression". This view was, however, revisited by this Court in the case of M.D Sui Southern Gas Company Ltd. Karachi vs. Ghulam Abbas (2003 PLC (CS) 796 (833-N)). It was contended that absorption would simply mean appointment by way of transfer. He submitted that appointment by way of transfer have two categories. He submitted that under Rule 9-A of the Rules of 1974, an employee who is rendered surplus on account of abolition of his post or on permanently taking over the administration of the autonomous body by the Government, can be absorbed on transfer to any other department provided that such person possesses such qualifications laid down under the rules of appointment besides the other three conditions referred to therein. He contended that even an employee of an autonomous body can be absorbed under Rule 9-A of the Rules of 1974, if his post is abolished or the autonomous body in which he was serving is taken over by the Sindh Government. In absence of these two pre-conditions, Rule 9-A could not be invoked to absorb an employee of an autonomous body in the Sindh Government. He next contended that absorption in such like matters is to be regulated by regular appointment and in support of his contention has relied on an unreported judgment of this Court in the case of Agha Altaf Nabi vs. Govt. of Sindh in C.P.L.A No. 147-K/1999 decided on 22.07.99.
51. He next contended that seniority of a civil servant is granted on his regular appointment in all the three modes of appointment under the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1973. In support of his contention, he has relied on the case of Nazir Ahmed Panwar vs. Government of Sindh (2005 SCMR 1814). He next contended that Rule 9(1) further provided appointment by transfer only to those persons holding appointment on regular basis in the same grade in which post to be filled exists. According to the learned counsel the impugned Ordinance provides exception by introducing the term "Absorption". Under Rule 9-A of the Rules of 1974, appointment of a person on transfer basis could be made subject to the condition that the civil servant must be holding appointment on regular basis in the same basic scale. Learned counsel submits that this Rule 9-A is to be read with Rule 7(2) and (3) of the Rules 1974, which relates to civil servants. According to him, sub-Rule (3) of Rule 7 provides that unless Provincial Selection Board recommends, appointment by promotion or transfer to a post in Basic Scale 18 cannot be made on regular basis. He in support of his arguments has relied upon the case of Government of Punjab vs Mrs. Kishwer Alam (PLD 1997 SC 578 A & B). While concluding his arguments on the issue of absorption, he submitted that Rule 17 of the Schedule 6 read with Article 5 and 6 of the Rules of Business, 1986, procedure is provided for floating the summary. According to him, the Rules do not permit any official of the Sindh Government to float a Summary of a non-civil servant.
52. Mr. M.M. Aqil Awan, learned Sr.ASC, has filed his written synopsis on the issue of `out of turn promotions' and has also made his oral submissions. According to him, the Act of 1973, does not provide any mechanism under the impugned instruments for granting out of turn promotions. He submitted that promotions are of two kinds: one by the government under Section 9 of the Act of 1973 and the other is out of turn promotion which is granted under Section 9-A of the Act of 1973. He submitted that in the year 2002, Section 9-A was introduced by amending the Act of 1973 and was given protection by XVII Amendment under the Constitution. The said amended Section 9-A remained on the statute book till it was omitted by an Ordinance on 27.02.2008. According to him, the said Ordinance was not placed before the Provincial Assembly, therefore, in terms of Article 264 of the Constitution, on lapse of the Ordinance, Section 9-A stood revived. He submitted that the effect of the lapse/repeal of the Ordinance has been decided by this Court in the case of Pir Sabir Shah vs. Shah Muhammad Khan (PLD 1995 SC 66 (205-ggg)) and Federation of Pakistan vs. M. Nawaz Khokhar (PLD 2000 SC 26 (45-g)).
53. According to him, Section 9-A of the Act of 1973 provided that "out of turn promotions" would be granted in such manner as may be prescribed. The word "prescribed" has been defined under Section 2 of the Act of 1973. In this background, the Provincial Government framed and added Rule 8-B in the Rules of 1974. The rules were framed in exercise of powers conferred under Section 26 of the Act of 1973. The said Rule 8-B amended through Notification dated 10.02.2005 was omitted by a second Notification dated 11.05.2005. Thereafter, the Sindh High Court on 31.03.2009, in its judgment passed in C.P.No. 1595/2005 directed the Sindh Government to revive Rule 8-B of the Rules of 1974 and examine the case of each police officer, who was granted out of turn promotion. This judgment of the High Court was never implemented by the Sindh Government and on 04.09.2012 impugned Ordinance No. VI of 2012 was promulgated by which Section 9-A sub-section (3) was again amended which reads:--
"9-A. Notwithstanding anything contained in this Act or any other Law for the time being in force or any judgment of any Court, a civil servant who provenly exhibits the act of gallantry while performing his duties or very exceptional performance, beyond the call of duty, may be granted out of turn promotion or award or reward by Government (CM)".
54. According to Mr. M.M. Aqil Awan by this impugned Ordinance, the legislature has omitted the term `prescribed' in Section 9-A as a result whereof Rule 8-B of the Rules of 1974 stood omitted. According to him, now it is the Chief Minister alone who has the powers to grant out of turn promotions as requirement of the committee under Rule 8-B was done away. He next contended that the term `out of turn promotion' was not defined under the impugned Ordinance nor does it provide any legal cover or validity to the past promotions granted on out of turn basis and remained the subject-matter of litigation in cases mentioned hereinabove. The impugned Ordinance, VI of 2012 did not debar the Government of Sindh from complying with the judgment of the Sindh High Court passed in earlier litigation on 31.03.2009. The Government realizing the aforesaid mistakes immediately issued another impugned Ordinance No. VII of 2012 on 05.09.2012 wherein sub-section (2) of Section 9-A was introduced, which reads:--
"All the out of turn promotions made under Section 9-A before the commencement of this Ordinance, shall be deemed to have been made under this section on regular basis."
The impugned Orindance, VII of 2012, did not have a non-obstante clause as Section 9-A was amended by Sindh Orindance, VI of 2012 and previously it was amended by Sindh Ordinance, IV of 2002 dated 22.1.2002. The impugned Orindance, VII of 2012 did not mention the date from which, out of turn promotions made to different police officers or civil servants would be treated on regular basis under its deeming clause. However, both these impugned Ordinances lapsed in terms of Article 128 of the Constitution. After the lapse of the impugned Ordinances, Act No. I of 2013 was promulgated under which after Section 23, new sub-Section 23-A was inserted by way of amendment with three sub-clauses, which reads:--
23-A. Regularization of out of turn promotions. (1) Notwithstanding anything contained in any law, or order or judgment of any Court, all out of turn promotions made immediately before the commencement of the Sindh Civil Servants (Amendment) Act, 2013, under Section 9-A by Government or competent authority or otherwise by the police department shall stand regularized from the dates of such promotions.
(2) All promotions regularized under sub-section (1) above and all notifications, proceedings, instructions or orders issued in pursuance of such promotions are hereby affirmed and shall be deemed always to have been validly made.
(3) A person aggrieved by any promotion regularized under sub-section (1) may file an appeal in the Sindh Service Tribunal, within thirty days of the commencement of the Sindh Civil Servants (Amendment) Act, 2013".
Act, I of 2013 only regularized out of turn promotion in the police department. Realizing this mistake, another Act, XXIV of 2013 was promulgated on 15.03.2013, wherein after Section 23(A), by way of amendment, another Section 23(B) consisting of three sub-Sections was inserted, which reads:--
"23-B (1) Notwithstanding anything contained in this Act or rules made there-under, or in any decree, order or judgment of a Court, an employee absorbed, or as the case may be, promoted under Section 9-A as a civil servant against a post in connection with the affairs of the Province and holding such post immediately before the date of commencement of the Sindh Civil Servants (Second Amendment) Act, 2013, shall be deemed to have been validly absorbed, or as the case may be promoted to that post on regular basis with effect from the date of his absorption, as the case may be, promotion."
(2) A person aggrieved by any absorption, or as the case may be, promotion regularized under sub-Section 91) may file any appeal in the Sindh Service Tribunal, within thirty days of the commencement of the Sindh Civil Servants (Second Amendment) Act, 2013".
55. Mr. M.M. Aqil Awan submitted that the difference between the two impugned Acts is that the former speaks of only out of turn promotions in the police department whereas the later impugned Act validates not only absorption of the employees but also out of turn promotions under Section 9-A of the Act of 1973 from the date of their absorption or promotion.
56. Mr. Yawar Farooqi, learned ASC, representing Agha Masood Abbas, has filed his written synopsis by way of C.M.A. No. 2695 of 2013, and has also made oral submissions. He contended that by the impugned Act, XVII of 2011, 1085 employees were absorbed and is not person specific. According to him, the impugned Act was promulgated to validate the absorptions of the employees made from time to time since 1994. He further submitted that impugned Orindance, VI of 2012 has amended Section 10-A of the Act of 1973, which empowers the Chief Minister to absorb permanently any employee in the Sindh Government. He contended that absorption is a legal concept and all provinces in the country appoint the employees by absorption. He submitted that the impugned Act of 2013 regularized the absorptions made in the Sindh Government, which was within the competence of Assembly.
57. He next submitted that the concept of deputation is a legal one. According to him, the Sindh Government while ordering transfer by deputation is only required to establish that exigency existed. In this regard, he has relied upon the case of Fauji Foundation & another vs. Shamimur Rehman (PLD 1983 SC 457) and Mehr Zulfiqar Ali Babu vs. Government of the Punjab (PLD 1997 SC 11). He submitted that in the case of Elahi Cotton Mills, this Court has held that the Parliament can nullify the effect of a judgment of the Court in exercise of its legislative powers. He submitted that his client was validly absorbed and conceded that there may be cases where few of the employees were wrongly absorbed, but that would not empower this Court to strike down the impugned legislative instruments.
58. He further contended that Article 240 of the Constitution is not directly hit by the impugned instruments and has referred to Articles 14 and 16 of the Indian Constitution under which the rights of the Civil servants were independently guaranteed whereas according to him under our Constitution, civil servants have not been provided such protection. He submitted that the issues arising out of the impugned legislation be remanded to a Committee to examine the cases of out of turn promotion under Rule 8-B or to the Provincial Assembly to review the law.
59. Mr. Anwar Mansoor Khan representing Respondent Sheraz Asghar Sheikh has contended that the appointment of his client was validated under the impugned Act, XVII of 2011 and Act, XXIV of 2013. According to him the impugned legislative instruments are valid piece of legislation and fall within the competence of the legislature. He submitted that the impugned instruments were promulgated to remove the deficiencies and illegalities committed by the Sindh Government. According to him, this Court in the case of Fauji Foundation vs Shamimur Rehman (PLD 1983 SC 457) has held that mala fide cannot be attributed to the legislature. He submitted that in order to strike down the legislative instruments, it is necessary that the Court has to be satisfied that it impinges upon fundamental rights of the citizens under Articles 8 and /or under Article 240 of the Constitution. According to him, the issue raised in these proceedings is confined to individual grievance which could be redressed by approaching the appropriate forum.
60. He next contended that the definition of deputation provided under the Act of 1973 includes the person employed in an Authority, who can be transferred and posted in the Sindh Government. He has relied upon the case of C. Munni Appa Nido vs. State of Karnataka (1976 (4) SCC 543 (797)), which deals with the absorption while the case of (2002(9) SCC 485) deals with the deputation. Mr. Anwar Mansoor Khan has already filed his written arguments by way of C.M.A.No. 2696 of 2013, which he adopts. He, however, in his oral arguments contends that the principles of statutory and Constitutional interpretation have been propounded by this Court in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry vs. President of Pakistan through Secretary and others (PLD 2010 SC 61). He further contended that the Constitution must be read as an organic instrument and is to be interpreted in the light of changes in society. In support of his contention he has relied upon the cases of Munir Hussain Bhatti Advocate and others vs. Federation of Pakistan and another (PLD 2011 SC 407), Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others vs. General Pervez Musharraf Chief Executive and others (PLD 2002 SC 853), Mst. Attiyya Bibi Khan and others vs. Federation of Pakistan and others (2001 SCMR 1161) and Dr. M.Aslam Khaki vs. Syed Muhammad Hashim and 2 others (PLD 2000 SC 225).
61. He next contended that Constitution is a living document to be interpreted in the widest manner and judicial approach has to be dynamic, progressive and liberal. In support of his contention, he has relied upon the cases of Pakistan Tobacco Company Ltd. & others Vs. Government of N.W.F.P through Secretary Law and others (PLD 2002 SC 460), Messrs Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (1997 PTD 1555), Al-Jehad Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324), Pir Sabir Shah Vs. Shad Muhammad Khan Member Provincial Assembly NWFP and another (PLD 1995 SC 66), Pakistan Industrial Development Corporation vs. Pakistan (1992 SCMR 891). As regards the Articles relating to fundamental rights he submitted that they be construed liberally to provide maximum possible relief and has relied upon the cases of Pakistan Tobacco Company Ltd. and another vs. Federation of Pakistan and others (1999 SCMR 382), Mohtarma Benazir Bhutto and another Vs. President of Pakistan and others (PLD 1998 SC 388), Wukala Mahaz Barai Tahafaz Dastoor and another Vs. Federation of Pakistan and others (PLD 1998 SC 1263), Mushtaq Ahmed Mohal and others vs. The Honourable Lahore High Court Lahore and others (1997 SCMR 1043) and Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473).
62. The next contention of Mr. Anwar Mansoor Khan is that in case of conflict between two provisions, the Courts have to harmonize conflicting provisions and declare which one is to be preferred if conflict cannot be resolved. Provision conferring lesser rights must yield in favour of provision conferring higher rights and in support of his such contentions he has relied upon the cases reported as Accountant General Sindh and others Vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of Pakistan and others (PLD 1998 SC 1263), Shahid Nabi Malik and another vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32), Mahmood Khan Achakzai and others vs. Federation of Pakistan and others (PLD 1997 SC 426), Al-Jehad Trust and others vs. Federation of Pakistan and others (PLD 1996 SC 324) and Pir Sabir Shah vs. Shad Muhammad Khan Member Provincial Assembly NWFP and another (PLD 1995 SC 66), however, in the cases of Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of Pakistan and others (PLD 1998 SC 1263) and Al-Jehad Trust and others vs. Federation of Pakistan and others (PLD 1996 SC 324), it is held that conflict between two provisions/constructions corresponding closely to and giving effect to dominant intent will be preferred to ensure harmonious working.
63. He next contended that Courts can make use of the legislative history for the purpose of construction, interpreting provisions in light of circumstances that produced them. In support of his contention he has relied upon the cases of Messrs Gadoon Textile Mills and 814 others vs. WAPDA and others (1997 SCMR 641) and Miss Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416).
64. Mr. Anwar Mansoor Khan submitted that powers of legislature have been propounded by this Court in various judgments and has relied upon the following judgments:--
(i) Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457).
(ii) Independent Newspaper Corporation Vs. Chairman Fourth Wage Board (1993 SCMR 1533).
(iii) Executive District Officer (Revenue) Vs. Ijaz Hussain (2012 PLC (C.S) 917).
(iv) Lila Dhar Vs. State of Rajasthan & others (AIR 1981 SC 1777).
(v) Dr. Mobashir Hassan and others Vs. Federation of Pakistan (PLD 2010 SC 265).
(v) Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan and others (PLD 1997 SC 582).
(vii) Mahmood Khan Achakzai & others Vs. Federation of Pakistan and others (PLD 1997 SC 426).
(viii) The Punjab Province Vs. Malik Khizar Hayat Khan Tiwana (PLD 1956 FC 200).
(ix) Haider Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623).
(x) Mehr Zulfiqar Ali Babu and others Vs. Government of Punjab and others (PLD 1997 SC 11).
(xi) The State Vs. Zia-ur-Rehman and others (PLD 1973 SC 49).
(xii) Mamukanjan Cotton Factory Vs. The Punjab Province and others (PLD 1975 SC 50).
65. Mr. Mehmood Ahmed Sheikh, learned AOR, representing the Respondent No. 6 has adopted the arguments of Dr. Farogh Naseem. Mr. Abul Hassan learned ASC, representing Respondent No. 8 has adopted the arguments of Mr. M.M. Aqil Awan.
66. Mehmood Akhter Naqvi, Applicant in person in C.M.As. No. 278-K of 2013, 86-K of 2013, 255-K of 2013 and 275-K of 2013, has submitted that the impugned instruments have been introduced to give favours to the blue-eyed of the politicians. He submitted that this Court in the case of Muhammad Nadeem Arif vs. Inspector General of Police, Punjab, Lahore (2010 PLC (CS) 924 Relevant (934)), has held that out of turn promotion is violative of Article 9 of the Constitution and has also declared it as un-Islamic. According to him, after the judgment of this Court, holding out of turn promotions violative of Article 9 and 2-A of the Constitution, the Provincial Assembly cannot legislate a law empowering Chief Minister to grant out of turn promotions. He submitted that the Chief Minister Sindh, on the strength of the impugned legislation, has absorbed employees (non-civil servants). According to him, the manner in which the blue-eyed employees were extended favours through these impugned instruments is unprecedented which has direct bearing on the valuable rights of the civil servants of the Sindh Government which run in hundreds of thousands. According to him, the impugned instruments should be declared void and ultra vires of the Constitution.
67. Inspector Sarwar Khan has filed C.M.A.No. 245 of 2013 and Inspector Baharuddin Babar has filed C.M.A.No. 247 of 2013, in which they state that seven DSPs were appointed directly by the Chief Minister without following the procedure provided in the recruitment rules in the recent past. According to them, one Waseem Khawaja, who has been appointed DSP, was ordered to be repatriated to Excise Department by this Court and after his repatriation, under the garb of the impugned legislation, Waseem Khawaja was directly appointed as DSP. He further submitted that the two persons namely Rizwan Soomro and Riaz Soomro, brothers of the then Law Minister of Sindh, were initially brought on deputation in Sindh Police and appointed and absorbed as D.S.Ps in police, whereafter they were given backdated seniority of the previous departments and were also granted out of turn promotions under the impugned legislation. Like-wise many other persons/employees who were closely related and /or friends of the Members of Sindh Provincial Assembly were extended favours by transferring them on deputation and absorbing them in the Sindh Government with accelerated promotions with backdated seniority in colourable exercise of powers conferred under the impugned legislation.
68. During the hearing of the matter, Constitution Petition No. 21 of 2013 was filed by Choudhry Afrasayab in which vires of all the impugned legislations were challenged. We had issued notice to the Advocate General for today. Ch. Afrasiab Khan, learned ASC, while adopting the arguments of Mr. M.M. Aqil Awan has submitted that in the case of Elahi Cotton Mills, this Court has declined to strike down the legislative instrument observing at pages 655- 679 that the issue involved has direct bearing on the economy of the country and, therefore, the legislative instruments were not being interfered with. He submitted that the case in hand stands on different footing and the principle laid down in the said case would not be extended to cover the present proceedings. He submitted that all the instruments challenged in these proceedings are liable to be struck down being violative of Articles 4, 8, 9, 25, 240 and 242 of the Constitution.
69. On the other hand, Mr. Sarwar Khan, learned Additional Advocate General submits that the Advocate General Sindh has already filed written synopsis by way of C.M.A.No. 280/2013 and has adopted his earlier arguments made in addition to the written synopsis.
70. Additionally there are number of applications sent by the different civil servants/police officers, challenging the actions of the Executive/Government claiming that they were directly affected by impugned instruments. Maqsood Ahmed D.S.P in his CMA No. 42-K of 2012 states that he is in the police service since 1973 and was promoted as Sub Inspector on 01.04.1980 and Inspector on 25.03.1990 and DSP in March 1998. He in his application claims that his juniors were promoted to the Rank of SSP on account of out of turn promotions. He claims that under Rule 8-B out of turn promotion can only be given one time in the entire service, but many police officers were granted four times out of turn promotions in violation of the Rule 8-B. Even otherwise, accelerated promotion negates Articles 4, 9, 18 and 25 of the Constitution which guarantee equal protection to every citizen. He further claims that many employees who came on deputation, in deviation of the law were absorbed in Police Department and granted out of turn promotions with backdated seniority. According to him this act of the Government has affected the working of the police. He has further stated in his application that out of turn promotions in public Department generates frustration amongst the ranks of the police. Along with his application, he has annexed different orders of the Sindh Government by which the out of turn promotions were granted to different police officers/civil servants. We have had the occasion to see the copy of one of the Summary, which he has filed along with the application. It mentions a request from one Dost Ali Baloch for grant of Selection Grade promotion from BS-18 to BS-19 in Sindh Police. In order to show the working of the Sindh Government, we were provided copy of summary of Dosti Ali Baloach which is placed/pasted here-under:--
71. The applicant has also mentioned 15 police officers, who were absorbed in police service from different autonomous bodies/ organizations and Departments challenging their absorption/ appointments, inter alia, on the ground that they were absorbed in the Sindh Government for political considerations and are now holding key positions in Sindh Police after getting out of turn promotions and backdated seniority. Amongst the officers, he mentioned the name of Dost Ali Baloch, who was from the Intelligence Bureau and came on deputation in 1994, permanently absorbed in Sindh Police in 1998 and was given backdated seniority and presently he is in Grade-20. The Sindh Government in its comments has stated that in 1994, Dost Ali Baloach was transferred on deputation in Sindh Police. In the year 1995 he was promoted as Deputy Director (BS-18). He was absorbed in Sindh Police as SP on 14.10.1998. He was allowed backdated seniority w.e.f. 26.09.1995. In the year 2011, he was unprecedently promoted to BS-20 by the Sindh Government after his encadrement in Police Service of Pakistan in the Federal Government. He was appointed as Consultant or Director (Finance) and posted in the rank of DIGP. The Sindh Government has wilfully concealed in their comments, the out of turn promotion of Dost Ali Baloach from BS-18 to BS-19. What really has disturbed us is that in order to promote an officer from B.S-19 to B.S-20, the law requires the officer to serve in the department for a certain term but in his case, this restriction has been done away. Additionally after B.S-19, Dost Ali Baloach could only have been promoted to B.S-20 by a Board constituted by the Federal Government and the Sindh Government had no business to promote him. We, however, refrain from commenting upon the working of Sindh Government. There may be many more cases of such like favours.
72. The applicant Maqsood Ahmed has further placed before us the material pertaining to service record of Mohammad Malik, Director in the FIA, who was deputed in Sindh Government in 2007 and promoted as SSP. According to him, Mohammad Malik was absorbed in Sindh Government in BS-19 and was given backdated seniority w.e.f 11.09.2006 and thereafter was promoted to BS-20 along with Dost Ali Baloch on 28.09.2011. In his case, the Sindh Government in its para-wise comments has stated that this officer was transferred on deputation in 2007. He was absorbed as SSP (BS-19) on 31.10.2007. He was assigned seniority w.e.f 11.09.2006 and was promoted as Director General (BS-20). At present he is working as DIGP w.e.f 01.10.2011. His case is identical to the one which we have already taken note of in the earlier para. The Government of Sindh in their comments has not stated a single word as to whether both of these officers after their absorption in Sindh Police were sent for police training as provided under recruitment rules. We believe that without such training in Police Academy, a police officer cannot put on uniform.
73. The applicant D.S.P Maqsood further mentioned in his application that Mohammad Riaz Soomro, who came on deputation from ANF and in February 2008 was absorbed and appointed in BS-17 as DSP. Thereafter he was assigned backdated seniority in the rank of D.S.P w.e.f 24.08.1989 and was promoted as S.P and is serving in O.P.S as SSP Mirpurkhas. The Sindh Government in their comments has stated that the officer was permanently absorbed on 26.02.2008 and his seniority was fixed under the orders dated 20.05.2008 of the Sindh High Court passed in C.P.No. D-456/2008 w.e.f 24.08.1989. On 23.07.2008 Riaz Soomro, on the recommendations of Departmental Selection Board was promoted as SP in BS-18. On 23.11.2010 he was promoted to BS-19 against future vacancy. The comments of Sindh Government reflect how favours were extended to him. The comments do not show that the Sindh High Court decided his case on merits nor it mention that the out of turn promotion was granted to him on recommendations of the Committee notified under Rule 8-B.
74. Muhammad Rizwan Soomro, the other brother of former Law Minister Sindh, was on deputation, absorbed with backdated seniority and then granted out of turn promotion. The High Court did not pass orders on merits nor his case of promotion was recommended by the Committee under Rule 8-B.
75. The applicant mentions the case of Mohammad Ali Baloch, brother of Dost Ali Baloch, who was an Assistant Director Computer in the I.T. Department. His services were regularized in regular police and he was appointed as DSP by way of transfer with all backdated service benefits since 2003. In 2007 he was promoted to the rank of S.P (BS-18) against future vacancy and is presently serving as S.P Tando Mohammad Khan. The Sindh Government while justifying his out of turn promotion, has stated in its comments that while posted as Taluka Police officer, Tando Jam, District Hyderabad he displayed matchless gallantry act in busting the network of hardcore terrorists. He conducted raids and arrested five members belonging to the gang of Sindh Liberation Army.
76. Abdul Hadi Bullo an officer of OMG was transferred on deputation in Sindh police in 2003 and was absorbed in Police Department with backdated seniority in BS-18 and was encadred in PSP in 2011. In his case Sindh Government has mentioned that on the recommendations of the Prime Minister of Pakistan, he was transfer and appointed in Police Department on Shaheed Quota against the Shahadat of his brother Abdul Aziz Bullo PSP/DIGP on 23.6.2003. Thereafter on 19.12.2007, he was assigned backdated seniority in BS-18 w.e.f. 23.02.1998. He was encadred in police service of Pakistan on 25.10.2011 and is presently posted as SSP/Principal PTC Shahdadpur.
77. Shahid Hussain Mahessar, who came on deputation from I.B in 2009. In 2011 though he was repatriated under the orders of the Court to I.B. In his case the Sindh Government has furnished comments stating therein that in the year 2009 his services were placed at the disposal of Sindh Government and he was posted as ADIGP/Special Branch Sindh, Karachi. He was recommended for absorption by Addl. AIG/ Special Branch Sindh. In the year 2011 vide Notification dated 04.01.2011 his deputation was cancelled/withdrawn. He filed a Constitutional Petition in the High Court of Sindh and obtained status quo order. Thereafter the said officer was appointed and transferred as SP (BS-18) in Sindh Police on 11.10.2011. There is no mention as to how he was granted BS-18.
78. Zameer Ahmed Abbasi Assistant Director NAB came on deputation in police Department in 2008. He was sent on training and after completion of training he was posted as SPO/Darakshan Clifton, Karachi in 2010. In his case Sindh Government has stated that his services were placed at the disposal of Sindh Police on deputation in the year 2008. After training he was assigned regular posting as DSP in Sindh Police. In the year 2010 his deputation was cancelled/withdrawn. He filed Constitutional Petition in Sindh High Court and in the said petition his order of repatriation was suspended. Recently Sindh High Court has ordered to issue a formal Notification of his absorption extending him benefit of the impugned legislation. Vide letter dated 21.11.2011, his matter is referred to the Secretary Services Government of Sindh for filing leave to appeal against the judgment of the Sindh High Court. The issue of his absorption was not decided on merits by the High Court, nor order of this Court for his repatriation to the parent department was challenged.
79. Shiraz Asghar Shaikh came from PEMRA in Sindh Police on deputation in the year 2008 on the desire of Chief Minister Sindh. He was appointed as DSP. However, in the year 2011 he was recommended for absorption in police Department. In his case, the Sindh Government in its comments has stated that at the desire of Chief Minister his services were placed at the disposal of Sindh Government in 2008 for a period of three years. Thereafter he was posted in Sindh Police. His case was placed before a Committee for absorption in Sindh Police. His Notification of absorption was cancelled/withdrawn. However, he filed Constitutional petition before Sindh High Court wherein his order of repatriation was suspended and he was allowed to continue in Sindh Police till further orders. The Sindh High Court ordered for issuance of his formal Notification of absorption. The Home Department has absorbed him on 11.06.2012 in pursuance of the Court's order extending him the benefit of the impugned legislation without examining the effect of orders of this Court for his repatriation to the parent department.
80. One Mohammad Yaqub Almani filed an application wherein he has stated that initially he was appointed as DSP in 1991 in Sindh Police. In 1997 he was promoted as S.P. He further submitted that on 02.05.2012 this Court ordered for repatriation of all the deputationists to their parent departments. The Sindh Government, however, was allowed to retain eight officers on deputation till the completion of projects, on which the deputationists were working. The Sindh Government from time to time extended the period of deputation of some of the officers. The Sindh Government sought services of Abdul Wahab Shaikh Director Intelligence Bureau (BS-19) and posted him in Sindh Police on deputation. He therefore, prayed for repatriation of Abdul Wahab Shaikh to his parent department.
81. One Syed Mehboob Ali Shah Deputy Director (MI&E) Criminal Prosecution has also filed an application under Order XXXIII Rule 6 of the Supreme Court Rules 1980, wherein it is mentioned that 150 prosecutors were posted by judgment dated 01.04.2009 of the High Court and leave sought by Province of Sindh was refused. However, it is stated that high ups in Law Department were not providing facilities to them and instead creating hindrances in their work. He pleaded that on 02.05.2012 in the instant matter this Court ordered for repatriation of the deputationist but the high-ups in the Law Department did not comply with the orders which amounts to contempt of the authority of this Court. It is further pleaded that Prosecution/Law Department is being run by deputationists, employees on detailment and non-cadre officers, who do not have matching qualifications. It is further claimed that postings of Mr. Ahmed Nawaz Jagirani Special Secretary (BS-20) and Dr. Sarwat Faheem Director Monitoring, Implementation and Evaluation (BS-19) in Criminal Prosecution Service is in defiance of the order dated 03.09.2012 passed by this Court. It is further pleaded that Dr. Sarwat Faheem Director Monitoring, Implementation and Evaluation is still holding the post and was relieved only on papers. It is further alleged that extension of Prosecutor General Sindh Criminal Prosecution Service for further three years is also against the judgment of this Court passed on 10.03.2011 in the case of Shahid Orakzai and Ch. Nisar Ali Khan. Lastly he prayed for impleading him as party to the present proceedings. We have noticed that in the lists mentioning the names of the `deputationists' provided by the Secretary Services, did not contain name of any deputationist from the Law Department or Prosecution Branch for which Secretary Law and Secretary Prosecution (Wing) are responsible who wilfully have withheld list of the deputationists working in their Departments with the object to extend favour to them.
82. One Azhar Aslam, who was Instructor in BS-16 Vocational Training Center, Latifabad, Hyderabad, STEVTA Sindh was transferred and his services were placed at the disposal of Enquiries and Anti Corruption Establishment, SGA&CD, Government of Sindh on deputation basis for a period of two years on 18.12.2012. The order is reproduced herein-under:--
83. One Shiraz Ahmed Zaidi, Assistant Director (BS-17) Lyari Development Authority, was transferred and his services were placed at the disposal of Chairman, Enquiries & Anti-Corruption Establishment Sindh, on deputation basis on 15.11.2012. The order is reproduced herein under:--
84. One Fakhruddin Ahmed Babar Abro brother of former MPA, who was initially in the Board of Education was absorbed and appointed as Deputy Director Anti Corruption on 26.11.2012. The Notification is reproduced herein under:--
85. An application of Attaullah son of Khuda Bux Phulpoto, brother of Saifullah Phulpoto of Khairpur addressed to the Chief Minister Sindh with a request for absorption/appointment of his brother by transfer as Inspector Anti-Corruption Establishment Sindh of Saifuallah Phulpoto, is reproduced herein below:--
The Chief Minister marked the aforesaid application to the C.S with a note to examine and put up.
86. Saifullah Phulpoto pursuant to the application of his brother was appointed and transferred as Inspector in Anti-Corruption Establishment Sindh on 04th July 2012. For appointment as Inspector in ACE, a candidate must have a Masters Degree in IInd Division, a Law Degree and 2 years experience under the rules. The Chief Minister Sindh overlooked the mandatory qualifications and appointed him as Inspector by issuing following Notification:--
87. Mr. Saifullah Phulpoto was again promoted as an Assistant Director in Anti-Corruption Establishment on 20.09.2012 bypassing the mandatory requirement of 5 years experience for promotion from Inspector to Assistant Director. The Notification of 20th September 2012 issued by the Sindh Government is reproduced herein below:--
88. Saifullah Phulpoto was again promoted as Deputy Director Anti-Corruption on 19.03.2013 without completion of five years in B.S.-17. The Notification of 19th March 2013 is reproduced herein below:--
89. One Nisar Ahmed Brohi was initially appointed as an ASI. He came on deputation in Anti-Corruption police and was granted out of turn promotion as DSP in 2011. He was absorbed in Anti-Corruption Establishment on 13.12.2011 and on 22.10.2012 he was appointed as S.P/Deputy Director. Nisar Brohi became S.P within one year after his absorption as Inspector. The relevant Notification of 22nd October 2012 is reproduced herein under:--
90. One Dhani Bux was Motor Vehicle Inspector. He came on deputation to Anti Corruption Establishment in 2008 and was absorbed. On 27.04.2012 he was promoted as DSP and presently he is working as PSO. His case is processed for appointment as S.P in Anti-Corruption. Notification of 27th March 2008 is reproduced herein under:--
91. One Kamran Ali Baloch Inspector in BS-16 in Police was inducted in Anti-Corruption Establislnnent and absorbed therein. The order dated 8th October 2012 is reproduced herein under:--
92. One Ghulam Muhammad Zardari was granted out of turn promotion on 07.12.2012 as DSP and his file has also been processed for promotion as S.P. The Notification dated 7th December 2012 is reproduced herein below:--
93. One Muhammad Ali Shah an officer of Ex-PCS (BS-17) Assistant Commissioner (Revenue) came on deputation on 3rd December 2012 in Anti Corruption Establishment and presently he is working as DSP in Anti Corruption Establishment. Notification dated 3rd December 2012 is reproduced herein under:--
94. One Ali Muzaffar Baloch, who was ASI, was granted out of turn promotion and was promoted as DSP. He came on deputation on 17.08.2012 in the Anti Corruption Establishment and was absorbed. On 27th November 2012 he was promoted as Deputy Director/S.P. Notification dated 27th November 2012 is reproduced herein under:--
95. One Zahid Hussain Shah Bukhari Inspector was appointed by way of transfer as Inspector in the Anti-Conuption Establishment by the Chairman on 15th November 2012. Notification dated 15th November 2012 is reproduced herein under:--
96. One Munir Ahmed Phulpoto DSP was granted out of turn promotion to the rank of S.P on regular basis by the Chief Minister Sindh vide Notification dated 13th March 2013. The Notification of 13th March 2013 is reproduced herein under:--
97. One Ghulam Shabir Talpur DSP was granted out of turn promotion to the rank of S.P. on 13.3.2013. The Notification of 13.3.2013 is reproduced herein under:--
98. One Mohammad Muzaffar Iqbal DSP was granted out of turn promotion to the rank of SP on 12th March 2013. Notification dated 12.03.2013 is reproduced herein below:--
99. The Services of Syed Ali Asghar Shah as SP were regularized w.e.f 25.01.2011 vide Notification dated 08.10.2012. The Notification dated 08.10.2012 is reproduced as under:--
100. Inspectors Imran Ahmed Siddiqui and Aijaz Hussain were granted out of turn promotions on the ground that "they were performing their duties as Pilots with the VIPs as well as VVIPs for the last 15/20 years. They have rendered meritorious services with high sense of responsibility and dedications" and they were recommended for out of turn promotion as under:--
101. The Promotion Committee was formed which endorsed the recommendations made by the S.S.P (Traffic) and both were promoted to the post of DSP in Police.
102. Another application was received by this office on the subject of illegal appointments in the S&GAD. In the application it was alleged that in violation of the orders of this Court, the Chief Minister Sindh and Additional Secretary Services namely Suhail Ahmed Qureshi had appointed the following persons as Assistant Commissioners in violation of the Rules.
103. Muhammad Hassan was appointed on 14th March 2013. He was Sub-Registrar in Board of Revenue in BS-11 and was appointed as Assistant Commissioner in (BS-17) Ex-PCS cadre without undertaking competitive exams and the training prescribed for such appointment. Notification of his appointment is reproduced herein under:--
104. Affan Aftab was appointed as Assistant Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at the disposal of Commissioner Hyderabad Division, Hyderabad for further attachment with Deputy Commissioner Shaheed Benazirabad for the field training till further orders vide Notification dated 6th March 2013. Notification dated 6.03.2013 is reproduced herein under:--
105. Aamir Khan Jamali was appointed as Assistant Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at the disposal of Commissioner Hyderabad Division, Hyderabad. He was attached with the Deputy Commissioner Hyderabad for the field training till further orders vide Notification dated 21st March 2013. Notification dated 21.03.2013 is reproduced herein under:--
106. Mir Najeeb-ur-Rehman Jakhrani was appointed as Assistant Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at the disposal of Commissioner Hyderabad Division, Hyderabad for further attaclunent with Deputy Commissioner Thatta for the field training till further orders vide Notification dated 3rd April 2013. Notification dated 03.04.2013 is reproduced herein under:--
107. We have been informed that Chief Minister in excess of the quota under the rules nominated the following persons as Assistant Commissioner. According to the information provided to us there are 265 sanctioned posts of Assistant Commissioners (BS-17) in Ex-PCS Cadre. 25% (66 posts) are reserved for posting of PAC (former DMG) Officers, leaving behind 75% (199 posts) which are to be filled by:--
(i) Initial appointment 50% (99 posts).
(ii) By promotion from amongst Mukhtiarkars 43.75% (88 posts).
(iii) By nomination 6.25% (12 posts)
. Following officers have been working in excess of prescribed quota of appointment by transfer/nomination:-
S.No. Name of officer Date of
appointment
appointment
01. Mr.Abu Bakar Mangrio 19.02.2007
02. Syed Altaf Ali 23.11.2007
03. Mr. Nazar Hussain Shahani 19.07.2011
04. Mr. Yar Muhammad Bozdar 30.09.2011
05. Mr. Sajjad Hussain Mehar 13.11.2012
06. Mr. Danish Khan 07.12.2012
07. Mr. Nadeem-ul-Haq 07.12.2012
08. Syed Umaid Ali 18.01.2013
09. Mr. Affan Aftab 18.01.2013
10. Mr. Ammaduddin Qayyum Chachar 13.03.2013
11. Syed Mohammad Omer 13.03.2013
12. Mr. Mohammad Hassan 14.03.2013
13. Mr. Imran Ahmed Shaikh 14.03.2013
14. Mir Najeeb ur Rehman Jakhrani 18.03.2013
15. Mr. Aamir Khan Jamali 20.03.2013
108. According to Rule 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, 12« percent posts of such vacancies shall be filled from amongst persons, who hold posts of Assistants, Superintendents working in Secretariat attached departments, Private Secretaries, Public Relations Officers to the Governor, Chief Minister and Ministers and Chief Secretary having done their Graduation, will be considered fit for appointment by transfer to the post of Assistant Commissioner (BS-17) in Ex-PCS Cadre by way of nomination. Selection List "B" and “C” is maintained in accordance with clause (b) quota and clause (c) of Sub Rule (5) of this Rule.
109. Against the share/quota of 12 posts, the Chief Minister has nominated by transfer 15 persons, after exhausting the prescribed quota. The complaints made by the applicants also mention the names of such persons reproduced hereinabove.
S.No. Name of officer Date of
appointment
appointment
01. Mr. Karamuddin Panhyar 13.08.1997
02. Mr. Attaullah 14.02.2006
03. Mr. Nazir Ahmed Soomro 14.02.2006
04. Mr. Arshad Waris 13.03.2006
05. Mr. Waseemuddin 21.03.2006
06. Mr. Maqsood Hussain Ghummro 21.03.2006
07. Mr. Shujat Hussain 21.03.2006
08. Mr. Muhammad Khan Rind 12.05.2006
09. Mr. Shaikh Mohammad Rafique 20.05.2006
10. Dr. Muhammad Rafique Sahito 30.05.2006
11. Mr. Abdul Fahim Khan 12.09.2006
12. Dr. Ali Nawaz Bhoot 14.09.2006
110. We may observe that nominations of Assistant Commissioners by the Chief Minister after exhausting his quota shall affect the seniority of the incumbents who will pass the P.C.S exams on merits and appointed as Assistant Commissioners till 2017. Therefore, all the aforesaid officers inducted in excess of the quota shall relegate to their original positions. In future, the Sindh Government shall formulate mechanism for nomination of such appointments by transfer to the post of Assistant Commissioner (BS-17) in Ex.PCS cadre.
111. The applicants in the aforesaid applications have raised individual grievances, inter alia, on the ground that powers conferred on the Chief Minister/ Sindh Government by virtue of the impugned legislative instruments had affected their rights under the service law and the Constitution. We refrain from commenting upon the complaints made by the applicants and the material placed before us. We will also not like to comment on the exercise of powers of the Chief Minister in the individual cases.
112. We have heard learned counsel as well as learned Advocate General Sindh/Additional Advocate General Sindh and have perused their written arguments. Before addressing the issue of `absorption', `deputation', `out of turn promotion', `re-employment' and `appointments on contracts' in the Sindh Government, we would like to first answer the objections raised by the learned Advocate General Sindh, Dr. Farough Naseem, Mr. Anwar Mansoor Khan, Mr. Yawar Farooqui and Mr. M.M. Aqil Awan (Respondent No. 5 in C.P. No. 71/2011) on the maintainability of C.P. No. 71/2011 and CP No. 21 of 2013 by which vires of the impugned legislative instruments have been challenged.
MAINTAINABILITY OF PETITIONS.
113. The learned counsel named hereinabove, appearing on behalf of the different Respondents in the aforesaid Constitution Petitions have commonly objected to the maintainability of the aforesaid 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 promotion, 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 can approach the appropriate forum for redressal of their grievance.
114. We have considered the arguments of the learned counsel for the Respondents and found them without force for more than one reason. In the first place, if this Court is of the view that impugned enactment is violative of fundamental rights guaranteed under the Constitution, it can examine the vires of such an enactment either on its own or on an application/petition filed by any party. The Petitioners have challenged the vires of the impugned enactments which raise questions of public importance relating to the rights of the Civil Servants in Sindh. This Court in the case of Watan Party and others vs. Federation of Pakistan and others (PLD 2012 S.C 292) has held that term "public importance" is one of the components to attract the jurisdiction of Supreme Court under Article 184(3) of the Constitution coupled with the facts that three elements i.e. question of public importance; question of enforcement of fundamental rights and fundamental rights sought to be enforced as conferred by Chapter-I, Part-II of the Constitution are required to be satisfied. In the case in hand the issues raised in the Petition cover parameters, which attract the jurisdiction of this Court under Article 184(3) of the Constitution. Moreover, this Court in the case of Tariq Aziz-ud-Din reported in (2010 SCMR 1301) while interpreting Article 184 (3) of the Constitution has held that it can examine the exercise of discretion of competent authority whereby it has upset the settled principle of service law adversely affecting upon the structure of civil servants. For the aforesaid reasons, we hold that these Petitions are maintainable under Article 184(3) of the Constitution.
ABSORP
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