1995 PLP (C (PLC(CS))

Representation

• Muhammad Aslam Chishti for Petitioners.
• Raja Rab Nawaz, D.A.G. and Ch. Ejaz Yousuf, Addl. A.G. for Respondents Nos. 1 to 4.
• Basharatullah for Respondent No. 5.
• Date of hearing: 23rd August, 1994.
• Mr. Muhammad Aslam Chishti, learned counsel for petitioners contended that the Provincial Government of Balochistan while filing para?wise comments dated 20th January, 1992 to the petition, duly supported by affidavits sworn by the Chief Secretary and Secretary, Services and General Administration Department, respectively had confessed the judgment by admitting the facts mentioned in the petition. Therefore, the petitioners are entitled for the relief, as has been prayed for.
• Mr. Ejaz Yousaf Chaudhary, learned Additional Advocate‑General, however opposed the petition and stated that CAI. No.303/94, dated ‑ 19th April, 1994 has been filed by him on behalf of the Chief Secretary and Secretary, S&GAD, i.e. respondents Nos. 1 and 2 seeking necessary amendment in the counter‑affidavit. According to him although the application is being contested by the petitioners, as they filed objections to it, but if it is allowed there would be no admission of facts on behalf of official respondents.
• It may be noted that the application has not been supported with affidavit of the concerned officers who filed counter‑affidavit on behalf of the Government, referred to hereinabove. However this question will be taken up later on, at the appropriate stage, because the Additional Advocate‑General as well as the Deputy Attorney‑General, Raja Rab Nawaz, on behalf of Provincial and Federal Governments (official respondents) objected to the maintainability of the petition, claiming its dismissal in view of the bar created by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
• Mr. Basharatullah, learned Counsel for respondent No.5 opposed the petition both on the question of jurisdiction as well as on merits, reiterating the same objection which has been raised by the learned counsel for official respondents. Additionally he emphasised that the object of filing the petition in the nature of quo warranto is indirectly to claim seniority in service by the petitioners over the respondent No. 5, as it is reflected from the contents of paras. 7 and 11 of the petition wherein, it has been noted that on account of induction of respondent No.5 in Balochistan Civil Services (Executive Branch), he has been placed on the top of seniority list of BPS‑19. As such, according to Mr. Basharatullah, Advocate, the grievance of petitioner appears to be that they have been shown junior to respondent No. 5. Similarly according to learned counsel, the factum of filing representations by the petitioners furnishes another evidence to support his argument, because in para. 9 of the representations, in categorical terms, it was stated that assigning the seniority to Colonel Muhammad Hashim in BPS‑19 had adversely affected the officers in B‑17 to B‑19 as well as to the petitioners themselves. Thus, the petitioners have got alternate remedy before the Balochistan Service Tribunal, against the impugned Notification and the petition on this score deserves dismissal.
• Mr. Muhammad Aslam Chishti, Advocate contended that under Article 199(2)(b)(ii) of the Constitution, this Court is competent to enquire from respondent No. 5, to show that under what authority, he holds the post in BPS‑19 in Balochistan Civil Services (Executive Branch), and to invoke the jurisdiction, it is not necessary for the petitioners to prove their locus standi. Even such petition can be maintained on behalf of any person, because the induction of respondent No. 5 is contrary to the relevant rules. According to learned Counsel after the induction of respondent No. 5, neither the Provincial Government had issued a seniority list showing the petitioners junior to him nor they are aware if on the basis of impugned Notification their seniority has been affected therefore, just to show their concern for maintaining the petition, certain averments in this behalf have been made. He also emphasised that even in the representations submitted to the Government, before invoking the Constitutional jurisdiction, prayer was made to withdraw the impugned Notification and in para. 9 thereof, it was not exclusively mentioned that petitioners shall adversely be affected, rather it was pointed out that the officers from Grade‑17 to 19 would suffer due to the induction of respondent No. 5. In this behalf Mr. Aslam Chishti, Advocate, placed reliance on 1992 PLC (C.S.) 289.
• Raja Rab Nawaz, Deputy Attorney‑General, referred to PLD 1994 SC 345 and‑534, whereas Mr. Basharatullah, Advocate referred to, PLD 1969SC 42 to substantiate the contentions putforth by them.
• In view of the above admissions, the learned counsel for petitioner Mr. Aslam Chishti stated that respondent No. 5 has confessed the judgment.
• On this an application for amendment of counter‑affidavit was moved being C.M. No. 303/94 on 19th April, 1994, which was signed by Additional Advocate‑General and no affidavits of the officers i.e. Chief Secretary and Secretary, S&GAD who filed parawise comments on 20‑1‑1992 were filed, Wherein relief was claimed that the permission be allowed to insert the word `not' before the word admitted' in reply to ground AB&D for the reasons that it is a clerical omission. The application was seriously opposed by learned counsel for petitioners.
• We have carefully considered this aspect of the case. It is to be seen that as it has been pointed out herein above the respondents have also admitted certain important facts while replying paras. 1 to 11 of the petition,, but no amendment therein has been claimed. Additionally the application was not supported by the affidavits of the incumbents who were holding the charge of the posts of the Chief Secretary as well as Secretary, S&GAD on the day when counter‑affidavit was filed, therefore, it is not free from difficulty to hold that an omission/error in filing the counter affidavit has been committed in?advertently. Contrary to it, inference can be drawn that in view of the facts and circumstances of the case, important admissions were made by the official respondents intentionally in order to assist the Court properly in view of the law, Rules, Regulations, Policies etc. prevailing at the time, when respondent No. 5 was inducted in the service. If in absence of evidence which could have been furnished by filing an affidavit with the amendment application, we would allow the application, it would change tile complexion of the proceedings and important admissions made by official respondents in support of the petition will be converted into denial. It is noteworthy that after filing of C.M. Application for amendment on 19th April, 1994, case was postponed for more than one occasion but the Additional Advocate‑General did not bother to obtain affidavits from the concerned Officers and due to this reason, we are justified in drawing inference that officials respondents were not willing to take a stand different from the one, which they had already taken in the counter? affidavit. Thus for these reasons, we have decided not to allow the amendment in the counter‑affidavit. Accordingly C.M. No. 303/94 is dismissed,
• In such view of the circumstances, it is held that respondent Nos.1 and 2 in the pleadings have not supported the impugned Notification. But surprisingly the Additional Advocate‑General argued the cage contrary to the stand of the Government and contended that the competent authority on relaxing the Rules has appointed Respondent No. 5, as such, the Notification cannot be questioned. He referred to PLD X971 SCE. In this case in absence of Recruitment Rules, it was held that the order of appointment of employee made by the Government is as effective as Rules. In our opinion this report is not helpful to the learned Additional Advocate‑General because the judgment was delivered with reference to the Constitution of Pakistan, 1962, in which a Constitutional Guarantee was provided to t ht Civil servants and the Governor, being appointing authority was held competent to make an appointment even in absence of recruitment Rules. He also referred to PLD 1974 SC 228. In this case the appointment of Chief Inspector of Mines was question by fling writ of quo warranto, and the Hon'ble Supreme Court held that candidate who does not possess the Decree of Post Graduate from recognised University can be recognised if authorities charged with duty and power of declaring so, had concurred in accepting post‑graduate qualification of a candidate holding degree from such University. In our opinion the facts of this case equally are not applicable on the present case.
• Much emphasis was laid by Additional Advocate‑General, and the Deputy Attorney‑General as well as Mr. Basharatullah, learned counsel for respondent No. 5, on the plea that once the competent authority had agreed to relax the condition of appointment of Government employee the validity or otherwise of the appointment Order/Notification in writ jurisdiction cannot be questioned. They referred to rule 12 of the Balochistan Civil Services (EB) Rules, 1984, to advance their argument.
• Mr. Aslam Chishti, Advocate, however, stressed that the court is always competent to examine, if the relaxation of the relevant rules has been made validly and secondly in a particular case to what extent such relaxation can be granted. He urged that in this case, induction of respondent No. 5 in Provincial Service was made contrary to the policy i.e. Induction, Re? employment of officers of Armed Forces of Pakistan in Civil Posts, in accordance with which, armed Officer in the rank of Colonel cannot be inducted in any civilian service, during the period when he is in the active service of the Defence and at the best if such service is to be made in the interest of General Public, such officer can be re‑employed on contract basis after his release from the Defence. According to him the Provincial Government of Balochistan in pursuance of the policy of Federal Government itself had also framed a policy to induct Defence Officers in the Civil Service but that policy was also flouted and without getting amended the relevant service Rules, the respondent No. 5 was directly inducted on regular basis against a 'Post of Grade‑19, which even otherwise, is not permissible because initial recruitment in the Provincial Cadre of Executive Branch is to be made in Grade‑17 on following the method of recruitment. There is no provision under the Rules authorising the Government to directly appoint an Armed Officer or even a civilian in Grade‑19.
• Surprisingly none, out of learned counsel appearing to defend the impugned Notification, came out with the argument that in making the induction of respondent No. 5 in the Provincial Civil Services, whether the above policy was followed or not. However, the learned Counsel for petitioner made a statement at Bar that no Provincial Recruitment Rules, etc. have been amended nor the above policy was followed while inducting the respondent No.5 in the Provincial Service. Be that as it may, according to para. (a) of the policy, the Government of Balochistan was authorised to fill up 10% of the vacancies open for initial recruitment in line with the instructions of the Federal Government. Those relevant instructions (policy) has already been discussed hereinabove, according to which, the Lt. Colonel/equivalent and above, were not held eligible to be inducted in the civil services on regular basis as such, k is concluded that even in the Provincial civil services such officer cannot be appointed on regular basis in Grade‑19, a post which is to be filled through promotion under Balochistan Civil Services (EB) Rule, 1984. Therefore, without adhering to the relevant instructions/policy, the induction of the private respondent in the Provincial Civil Service (Executive Branch) was corum non judice in violation of Policy.
• Learned counsel for respondent No. 5 could not answer satisfactorily that in view of above provisions of the Rules, how an officer of Armed Forces holding a subsistence rank of‑ Colonel can be appointed in the Provincial Civil Services, Executive Branch.
• Mr. Basharatullah, Advocate, attempted to argue that after the issuance of Notification; the respondent No. 5 was relieved from the Army on 6th January, 1992, therefore, if at all there was an error in the impugned Notification that stands rectified.

Headnotes / Summary

Judgment & Decree