IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No.D-1631 of 2008
Mr. Justice Gulzar Ahmed &
Mr. Justice Irfan Saadat Khan.
J U D G M E N T
Date of hearing : 22.10.2009, 10.11.2009 & 11.11.2009.
Petitioners through : Mr.Khawaja Shamsul Islam, Advocate.
Respondents 1-3 through : Mr.Muhammad Sarwar Khan,
Additional A. G. Sindh.
Respondent No.4 through : Mr. M. M. Aqil Awan, Advocate.
GULZAR AHMED, J.:- The petitioner in this petition has made the following prayers:
(i) Hold and declare that direct induction of Respondent No.4 by Respondent Nos.1 to 3 is without lawful authority and without jurisdiction and may further be pleased to direct his repartition to FIA/parent department;
(ii) Out of turn promotion of Respondent No.4 in Provincial Sindh Police Cadre and further his detailment for promotion within a short spain of few months, without any training/course for promotion in BS-20 is also unlawful, without jurisdiction and an act of malafide and favouritism;
(iii) Stay/suspend the operation of impugned notices/orders dated 31.10.2007 (Annexure “A” to the petition) and 06.08.2008 (Annexure E/1 to the petition) in respect of detailment of course for BS-20 till disposal of this petition.
(iv) Any other relief which this Honorable Court may deem fit and proper under the circumstances of the case.
At the outset, learned counsel for the petitioner submitted that petitioner does not claim any relief in this petition for himself and the prayer made for such relief be discarded and this petition be treated as a petition of quo-warranto and petitioner seeks relief only in respect of prayer (i).
The facts, relevant for disposal of this petition, are that the respondent No.4 was working as Additional Director (BS-19) with the FIA. The Government of Sindh required his service and requested Secretary Ministry of Interior, Government of Pakistan to place him at its disposal. This was done through telex dated 26.9.2007. On 05.10.2007 notification was issued by the Ministry of Interior whereby the respondent No.4 was placed at disposal of Government of Sindh with immediate effect. Through notification dated 08.10.2007 of the Chief Secretary, Government of Sindh the service of respondent No.4 on deputation was placed at the disposal of Provincial Police Officer Sindh Karachi for further posting and through notification dated 31.10.2007 the respondent No.4 was permanently absorbed and inducted in the Sindh Police as Senior Superintendent of Police (BS-19) in relaxation of the rules with immediate effect in the public interest. The respondent No.4 was posted as Senior Superintendent of Police Traffic MVI & DL Branch CCP, Karachi and through order dated 14.11.2007 was deputed to undergo suitable training of three months at PTC Saeedabad, Karachi. An office memorandum dated 27.2.2008 was issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan notifying the decision of competent authority that posting of officer of Police Service of Pakistan in FIA shall be treaded as ‘field posting’ for the purpose of promotion. The Provincial Police Officer Sindh through letter dated 09.10.2008 to the Chief Secretary Government of Sindh asked for treating the case of respondent No.4 to be treated at par with the office memorandum of the Establishment Division dated 27.2.2008. Through notification dated 21.10.2008 of the Chief Secretary, Government of Sindh the period of posting of respondent No.4 with FIA from 31.3.1990 to 05.10.2007 was treated as field posting for the purpose of his promotion on the analogy of the Establishment Division’s office memorandum dated 27.2.2008. Through letter dated 06.8.2008 the respondent No.4 was nominated for the 4th Senior Management Course at National Management College Lahore.
Mr. Khawaja Shamsul Islam, learned counsel for petitioner has contended that the transfer and permanent absorption of respondent No.4 as Senior Superintendent of Police (BS-19) was altogether illegal as in the first place the Chief Minister had no power to relax the rules and secondly the post of Senior Superintendent of Police was to be filled in from Provincial Police Cadre. He further contended that respondent No.4 is medically unfit and that his transfer and absorption as Senior Superintendent of Police was politically motivated and has nothing to do with his merit. In support of his submission he has relied upon the cases of AHSANULLAH A.MEMON V/S GOVERNMENT OF SINDH & 3 OTHERS (1993 PLC (CS) 937), MUHAMMAD ANIS & OTHERS V/S ABDUL HASEEB & OTHERS (PLD 1994 SC 539), MUHAMMAD IDREES V/S GOVERNMENT OF PAKISTAN ETC.(NLR 1998 Service 10), DR. NEELAM HUSSAIN V/S DR. RAZIA PARVEEN QURESHI & 2 OTHERS (2003 PLC (CS) 1222), MRS. SHAMIM RIZWAN V/S PROVINCE OF PUNJAB & OTHERS (PLD 1997 Lahore 580), GOVERNMENT OF PUNJAB AND OTHERS V/S MUHAMMAD NASEEM AND OTHERS (1999 SCMR 2063), MUHAMMAD IQBAL & OTHERS V/S EXECUTIVE DISTRICT OFFICER REVENUE & OTHERS (2007 SCMR 682), CHAIRMAN REGIONAL TRANSPORT AUTHORITY RAWALPINDI V/S PAKISTAN MUTUAL INSURANCE COMPANY LTD. RAWALPINDI (PLD 1991 SC 14) and Order dated 31.3.2009 passed in Constitutional Petition No.D-1595 of 2005.
On the other hand, Mr. M.M.Aqil Awan, learned counsel for respondent No.4 has contended that the reading of petition itself shows that no case for issuing of quo warranto is made out as the petitioner has raised his own personal grievance and sought benefit for himself and in any case no benefit can be extended to the petitioner as he is attaining superannuation on 27.12.2009. He has further contended that there are three posts of Senior Superintendent of Police (BS-19) which are all filed up and the petitioner being Superintendent of Police (BS-18) has no locus standi to file this petition. He contended that medical fitness is determined at initial recruitment and that the respondent No.4 is not taking exam of 4th Senior Management Course of BS-20. He has further submitted that Chief Minister, being the Chief Executive of the province and rule making authority, has power to relax the rules and to the extent rule is relaxed the same stand amended and that the absorption of respondent No.4 was in accordance with law. He contended that Court has no jurisdiction to entertain this petition as it lacks ingredients of a petition of quo warranto. In support of his submissions he has relied upon the cases of AHSANULLAH A.MEMON V/S GOVERNMENT OF SINDH & 3 OTHERS (1993 PLC (CS) 937), MULTILINE ASSOCIATES V/S ARDESHIR COWASJEE & OTHERS (1995 SCMR 362), MUKHTAR AHMED & 37 OTHERS V/S GOVERNMENT OF WEST PAKISTAN & ANOTHER (PLD 1971 SC 846), KHALID MEHMOOD V/S TARIQ JANJUA, EXECUTIVE ENGINEER, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT GUNJRANWALA (NLR 1994 Service 72), DR. BUSHRA ASHIQ SIDDIQUI V/S MUHAMMAD ASLAM (PLJ 1989 Karachi 518), DR. AZIM-UR-REHMAN KHAN MEO V/S GOVERNMENT OF SINDH & ANOTHER (2004 SCMR 1299), SHAH ABDUR RAZZAQ GILLANI V/S GOVERNMENT OF NWFP (NLR 1991 Service 46) and AHMED SALMAN WARIS V/S NADEEM AKHTAR (PLD 1997 SC 382).
Mr. Muhammad Sarwar Khan, learned Additional Advocate General, Sindh for respondent Nos. 1, 2 & 3 adopted the arguments of Mr. M.M.Aqil Awan, Advocate and added that the respondent No.4 who was an Additional Director (BS-19) in FIA was competent to be transferred and absorbed by the Sindh Government in BS-19 grade and the Chief Minister was vested with the powers to make such absorption and that FIA is a sister service of Police. He further contended that the matter of appointment having nexus with the terms and conditions of service, the petitioner grievance lie before the service tribunal and petition for quo warranto will not be maintainable.
In reply, Mr. Khawaja Shamsul Islam, learned counsel for petitioner has contended that the petition for quo warranto is maintainable and that the respondent No.4 has not been validly absorbed as Senior Superintendent of Police (BS-19) in Provincial Police Cadre and in support has relied upon the cases of MUHAMMAD IQBAL KHOKHAR & 3 OTHERS V/S GOVERNMENT OF PUNJAB & 2 OTHERS (PLD 1991 SC 35), PAKISTAN TOBACCO BOARD & ANOTHER V/S TAHIR RAZA & OTHERS (2007 SCMR 97), AKHTAR MEHMOOD V/S DEPUTY COMMISSIONER, GURJRAT & ANOTHER (2003 PLC (CS) 1146), and SYED NAZAR ABBAS JAFFRI V/S SECRETARY TO GOVERNMENT OF THE PUNJAB & ANOTHER (2006 SCMR 606).
We have considered the submission made by learned counsel for the parties and have gone through the record.
We will first take up the question regarding maintainability of the petition itself. It may be noted that the contents of the petition, as filed by the petitioner, amply demonstrate that the petitioner was aggrieved by the induction of respondent No.4 as Senior Superintendent of Police and such grievance was based upon the fact that petitioner himself was a Superintendent of Police (BS-18) in the Provincial Police Cadre and by induction of respondent No.4, his own prospect for promotion as Senior Superintendent of Police has been brought to naught. However, at the time of hearing of the petition the counsel for the petitioner made a categorical statement that petitioner does not seek any benefit for himself in the petition and it may not be considered a case of his grievance rather it should be confined to the extent of prayer (i) made by the petitioner in the petition which seeks declaration that induction of respondent No.4 is without lawful authority and without jurisdiction. Though it is well established law that in dealing with the petition for quo warranto Court will enquire into the conduct and motive of the relator and will examine as to whether he has been motivated on account of his personal dispute with the respondent in filing of the petition and as to whether any relief for himself is claimed by him.
On close scrutiny of the matter, it seems that at the time of commencement of hearing of this petition, the petitioner has altogether abandoned his personal grievance and merely confined the petition to be dealt with as pure and simple quo warranto and apparently there is no reflection of existence of any personal dispute between petitioner and respondent No.4. The only motivation that seems to be emanating in pursing this petition by the petitioner was and appears to be of ensuring transparency in making appointments in the Provincial Police Cadre. Viewed from this angle, the petition of quo warranto seems to be maintainable.
Rule 3 of Sindh Civil Servant (Appointment, Promotion & Transfer) Rules 1974 (hereinafter called the Rules) prescribes method for appointment by promotion or transfer in accordance with Part-II of these Rules and by initial appointment in accordance with Part-III of these Rules. It provides that method of appointment and the qualification and other conditions applicable to the post shall be laid down by the department concerned in consultation with the Services and General Administration Department. Rule 4 provides the authorities who are competent to make appointment to the post and appointing authority for the post of BS-19 is prescribed as Chief Minister. Rule 6-A provides that for the purpose of selection for appointment by promotion or transfer to the post in Basic Scale 18 carrying special pay and above and such other posts as may be notified by the Government, the Chief Minister may constitute one or more than one Selection Board consisting of not less than three members one of whom shall be nominated as Chairman. Sub-rule (3) of Rule 7 provides that appointment by promotion or transfer to posts in BS-18 with special pay and above and the posts notified under the rule 6-A shall be made on the recommendations of appropriate Provincial Board. Sub-rule (1) of Rule 9 provides that appointment by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic scale in which the post to be filled exists.
On reading of above rules, it appears that what the petitioner is pleading is that in terms of Rule 6-A and sub-rule (3) of the Rule 7 of the Rules the requirement of constituting of Provincial Selection Board and its recommendations for appointment by transfer was not fulfilled and thus the rule was violated in making of the appointment of respondent No. 4 by transfer.
Learned A.A.G.Sindh has argued that Sub-rule (3) of Rule 7 has no application for the reason that it was not a case of special pay. This argument need not detain us for long as on reading of Rule 6-A and sub-rule (3) of Rule 7 the appointment by promotion and transfer to BS-18 has been bracketed with special pay and not the post above BS-18. The case of respondent No.4 being that of BS-19, thus squarely falls within the ambit of Rule 6-A and sub-rule (3) of Rule 7 as there is no mention in these rules of special pay for BS-19. The question now boils down to fact whether the Chief Minister was competent to relax the rules of waiving requirement of seeking recommendations of the Provincial Selection Board or not. Learned counsel for the petitioner has vehemently argued that section 24 of Sindh Civil Servant Act 1973 (hereinafter called the Act) gives power to the Government to relax the rules but not to the Chief Minister.
On the other hand, learned counsel for respondent No. 4 so also learned Additional Advocate General, Sindh has contended that the Chief Minister being the Chief Executive of the province exercises the power of Government and in this regard have relied upon Rule 7(iii) of Rules of Business, which provides that any order passed by Chief Minister or any authority to whom he has delegated his powers to pass such orders, shall be deemed to be the orders passed by the Government. Section 24 of the Act reads as follows:
"24. Saving.- Nothing in this Act or in any rule shall be considered to limit or abridge power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable:
Provided that where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rules."
This provision was considered by Hon’ble Supreme Court in the case of Ahsanullah A. Memon (supra) in which minority view was expressed by Sajjad Ali Shah, J. (as His Lordship then was) at page 948 as follows:
“16. Bare reading of section 24 of the Sindh Civil Servants Act, 1973, makes the intention of Legislature very clear that the Government is empowered to make deviation from rules or grant exemption from application thereof in a fit case which may appear to the Government to be just and equitable. Vastness or enormity of this power of the Government can be visualised in the light of section 26 of this Act under which the Government has been given power to frame, amend or repeal the rules. What case is just and equitable is for the Government to decide but it can be said that in the normal course provisions of this Act and rules framed thereunder are to be acted upon but in an extraordinary case which is considered to be just and equitable application of rules can be exempted if causing difficulty converting the case into a hardship case. We are of the view that the Government should not and cannot exercise these powers in a case where vested rights of other civil servants are violated and impugned upon.”
The majority view on this provision was expressed by Ajmal Mian, J (as His Lordship then was) at page 958 as follows:
“No doubt under section 24 of the Act, the Government enjoys plenary power to deal with the case of any civil servant in such manner as may appear to it to be just and equitable notwithstanding any provision of the Act and the Rules. But the above power is to be exercised fairly, reasonably and in a manner which may not prejudice or take away any interest or right of a third person.”
The above observation of Hon’ble Supreme Court clearly shows that the Government has been empowered to make rules and to grant exemption but such can be done only in extraordinary case but this power cannot be exercised where vested rights of other civil servants are violated, impinged upon or to the prejudice of or taking away the interest or right of third person. It has been noted above that in terms of Rule 7(iii) of Rules of Business the orders passed by Chief Minister are deemed to be the orders passed by the Government. In the circumstances, the power to be exercised under section 24 of the Act is specifically meant to be exercised by the Chief Minister. Whether in exercising such powers in the case of respondent No.4 by the Chief Minister any vested right of other civil servants has been violated or impinged or any prejudice has been caused or any interest or right of third person has been taken away, apparently case appears to be not so for the reasons that had any vested right of other civil servant been violated or impinged upon or any prejudice has been caused or any interest or right of third person had been taken away, such person would have surely agitated for the enforcement of his right before the appropriate forum and such grievance or challenge could have been thrown by a person eligible to the post on which the respondent No.4 was permanently inducted. There is nothing on record nor was it argued before us that in exercising of the power under section 24 of the Act by Chief Minister, any of the vested right of other civil servant was violated or impinged upon or to the prejudice of or taking away the interest or right of a third person. No such case is made out before us and to this extent order of Chief Minister in terms of section 24 of the Act appears to have caused no prejudice or taken away the right of any other eligible civil servant.
In the case of Pakistan Tobacco Board (supra) the Hon’ble Supreme Court of Pakistan upheld the issuance of writ of quo warranto against reemployment of Pakistan Tobacco Board Secretary BS-19 after his retirement by the Chairman, Pakistan Tobacco Board on the ground that competent authority for making of reemployment was the President of Pakistan.
The object of writ of quo warranto is to determine legality of the holder of a statutory or constitutional office and decide whether he is holding such office in accordance with law or is unauthorisedly occupying a public office. The Court would be under an obligation to enquire whether the incumbent is holding public office under the order of competent authority and also to examine whether he is legally qualified to hold the office and to remain in the office. So far as to whether the respondent No.4 has been permanently absorbed in the office of Senior Superintendent of Police Bs-19 by an order of competent authority, as stated above under the rules it is the Chief Minister who is competent authority to make such absorption and in the case of respondent No.4 it is not disputed that order of his absorption was passed by the Chief Minister.
So far the question of qualification to hold and remain in office is concerned, it is admitted position that respondent No. 4 was working with the FIA as its Additional Director in BS-19 and he was transferred and then permanently absorbed in the post of Senior Superintendent of Police (BS-19) in Sindh Police. What qualifications that were required to be possessed for holding the post of Senior Superintendent of Police (BS-19) nothing concrete was shown by the petitioner except that it was alleged in the petition that there is a requirement of having a police training. No rule, regulation or order prescribing the qualification to be possessed by Senior Superintendent of Police (BS-19) was filed by the petitioner nor any was mentioned before us.
As regards the question of having police training, it was argued before us by the counsel for the respondent No.4 so also by A.A.G.Sindh that service in the FIA is considered as a sister service of Pakistan Police and that no separate training is required to be possessed by the officer of either department for determining their qualification to hold a particular office in the respective department. There was no serious rebuttal to this argument from the side of petitioner and therefore we do not wish to give any finding on the matter of qualification merely on the basis of mere allegation in the petition without any substantive material to support it. In any case, in the case of Dr. Azim-ur-Rehman Khan Meo (supra) the Hon’ble Supreme Court has held as follows:
“After having perused the entire record we are of the considered opinion that High Court cannot issue writ in the nature of quo warranto by removing a person from public office. The incumbent, did not suffer from any disqualification to hold a public office or to warrant removal from such office because issue of qualification relates to terms and conditions of service which aspect of the matter fell exclusively within the jurisdictional domain of Service Tribunal.”
Thus as discussed above, order of absorption of respondent No.4 has been made by competent authority that is Chief Minister and as regards qualification, no much material has been brought on the record by the petitioner to show that respondent No.4 was not qualified for the post in which he was absorbed.
The petitioner even did not produce any material to show that the post of Senior Superintendent of Police (BS-19) was specifically to be filled in from the Provincial Police Cadre as no rule, regulation, notification or order in this regard was placed on the Court record nor any was relied.
As regards the question of medical fitness of respondent No.4 is concerned, the petitioner has relied upon the letter dated 30.6.2008 of the petitioner’s mother in which she has stated that respondent No.4 is a patient of cervical spondylosis with sensory and motor loss in right upper limb. The respondent No.4 in his para-wise comments has denied that he is incapacitated and has stated that he is performing full duties of the post and getting treatment like so many other civil servants. The counsel for the petitioner has shown us nothing by which it may be inferred that petitioner is not capable of performing his duties despite suffering of malady as referred in the letter of mother of the petitioner. On the other hand, the counsel for the respondent No.4 has argued that question of medical fitness is relevant only for initial recruitment and in this regard has relied upon Rule 17 of the Rules which is in Part-III of Rules dealing with initial appointment and provides that no candidate shall be appointed to a post unless after such medical examination as Government may prescribe, such candidate is find medically fit to discharge the duties of the post, provided that blindness or any other physical defect shall not be a bar to the appointment if Medical Officer or Medical Board conducting the medical examination certifies that such defect shall not interfere with his duties. Thus for the present, it will suffice that the question of medical fitness is essentially to be considered at the time of initial appointment and not to subsequent transfers and postings. More-over it is not shown to us that there is any certificate of medical officer or Medical Board certifying that respondent No.4 is incapable of discharging his duties of the post held by him.
As regards the question of political influence, except for bare allegation and assertion nothing has been brought on record to squarely establish that the transfer and subsequent permanent absorption of respondent No.4 to the post of Senior Superintendent of Police (BS-19) in Sindh Police was motivated or influenced by any such consideration.
For the foregoing reasons we find that petitioner has failed to make out a case for issuance of quo warranto against the respondent No.4 and the petition along with listed application is dismissed.
J U D G E
J U D G E