2011 PLC (C (PLP)

SHAHID ANWAR BAJWA, J.

With the consent of learned counsel this petition was finally heard and is being decided at Katcha Peshi stage. It is a writ petition in the nature of quo warranto because it has been prayed that the respondent No.4 be called upon to show as to under what authority of law he claims to hold office of Executive Engineer Highways Badin. Notification dated July 26, 2008 was issued by the Secretary Works and Services Department. The entire notification is in the following words:

"No.SOEII(W&S)13-34/92.

With the Approval of Competent Authority (i.e. Chief Minister Sindh) Mr. Ghulam Shabbir Depar, Assistant Engineer (BPS-17), Works and Services Department is hereby promoted out of turn as Executive Engineer (BPS-18) with immediate effect."

2. Learned counsel for the petitioners submitted that the respondent No.4 was promoted on the basis of a summary submitted to the Chief Minister Sindh, by the Secretary. It was stated in the summary that section 9-A of the Sindh Civil Servants Act, 1973 had been omitted by the Sindh Assembly on 26-2-2008. Learned counsel further referred to seniority list of Executive Engineers and pointed out that respondent No.4 was at serial No. 21 in the seniority list. Learned counsel submitted that it appears that the respondent No.4 was promoted on the recommendations of Minister for Home, Prisons, Forest and Wildlife, Government of Sindh, which recommendation was made by him vide letter dated 5th May, 2008. Letter is in the following words:

"It is submitted that Mr. Ghulam" Shabir Depar Assistant Engineer, in Works and Services Department during his Service had rendered the gallantry performance beyond the call of his duties, which can be judged from the attached documents, certificate etc. In addition to his performance (documents attached). He has been posted in District Badin at various periods Assistant Engineer Roads Tando Bago 19-3-1994 to 21-12-1996, Assistant Engineer Roads Badin 15-1-2002 to 11-14-2003, and District Officer Roads Badin 17-9-2002 to 14-1-2003 has tendered the outstanding performance in quality quantity as well as in financial advisorship, day night working efforts and dedication which is beyond his duties. The section 9-A of the Sindh Civil Servants Act, 1973, provide:-- That: 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 in such manner as may be prescribed. In consideration of the facts and in reorganization of his services tendered beyond the call of duty and category of gallantry and excellent dossier record, it is proposed that Mr. Ghulam Shabir Depar may be promoted to the post of Executive Engineer (BPS-18) on out of turn basis."

3. Learned counsel submitted that section 9-A of the Sindh Civil Servants Act, on the basis of which this promotion has been made, was added with effect from 22-2-2002 and was deleted on 26-2-2008. Learned counsel submitted that at the time when promotion was granted to Respondent No.4 there was no provision like section 9-A on the statute book. Learned counsel submitted that even if such a provision was there case of the petitioner did not fall within the confines of section 9-A. He further submitted that this has caused serious heartburn amongst 70 or so Executive Engineers who have been superseded. Learned counsel relied upon Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924, Farhat Abbas v. I.G. and others 2009 SCMR 245.

4. Mr. Muhammad Nawaz Shaikh learned counsel for respondent No.4 referred to Annexures R4-A/1 to A/5 to contend that performance of the petitioner has been exceptional all along and therefore supported the impugned order. Learned counsel seriously attacked the maintainability of the petition in view of Article 212 of the Constitution and relied upon Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299, Khalid Mahmood Watto v. Government of Punjab and others 1998 SCMR 2280, Tahir Ali v. Federation of Pakistan and others PLD 1987 Karachi 290, Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S) 120 and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR

960. Mr. Adnan Karim, learned Additional Advocate-General referred to section 24 of the Sindh Civil Servants Act, 1973 and contended that Chief Minister has power to grant promotion and has therefore rightly and validly granted promotion.

5. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.

6. We will first take up question regarding maintainability of the petition. In this regard learned counsel for respondent No.4 firstly relied upon Azim-ur-Rehman Khan Meo's case (supra). Facts of this case were that the petitioner was Section Officer and challenged absorption of respondent No.2. Writ petition was dismissed by the High Court on two grounds firstly as being not maintainable in view of Article 212 of the Constitution and secondly petitioner had no locus standi to impugn absorption of respondent No.2. The Supreme Court observed that quo warranto is not issued as a matter of course. The court can and will enquire into the conduct and motive of the relator. However no precise rule can be laid down for the exercise of discretion by the court in granting or refusing an information in the nature of quo warranto and all the circumstances of the case must be taken together. Supreme Court further observed that there was no cavil with the proposition that for a writ of quo warranto it is not necessary that the petitioner must, be an aggrieved person. It was further observed that if it is established that the petitioner approached the Court with ulterior motive, mala fide intention and as an instrument of others, relief can be declined. Thereafter Supreme Court held that the incumbent did not suffer from any disqualification so as to warrant his 'removal. It was also observed that few other aggrieved persons had approached the Service Tribunal.

7. In Khalid Mahmood Watto's case (supra), Mr. Wattoo was Joint Director Labour and applied to the Federal Government for posting as Community Welfare Attache. He was duly recommended. Two other persons were also recommended belonging to Sindh Urban and Sindh Rural. Meanwhile number of posts of the Community Welfare Attaches was decreased and the Prime Minister decided to fill 5 posts from Sindh,' N.-W'.F.P. and FATA. Mr. Wattoo felt aggrieved and filed writ petition seeking direction to the Federal Government to process his case in accordance with the merit list already determined by the Selection Board. Writ petition was accepted. Intra-Court Appeal was allowed and the matter ended up in the Supreme Court. The Supreme Court concurred with the Division Bench that writ petition was barred by Article 212 of the Constitution.

8. Tahir Ali's case (supra) is in respect of a matter relating to transfer of evacuee property and is therefore distinguishable. In Ghulam Muhammad Mallah's case (supra). The petitioner claiming to be a social worker sought cancellation of transfers and postings of about 200 school teachers made by the EDO, Thatta mainly on the ground that they were not in public interest and were made during period when there was a ban on transfers. The High Court observed that petitioner cannot claim any vested right in any particular teacher to teach his children and also that transfer is purely an administrative action and is in terms of Article 212 of the Constitution outside the jurisdiction of this Court.

9. Last case relied upon was Dr. Mir Alain Jan's case (supra). In order to fill vacant post of Senior Registrar (Urology), Lady Reading Hospital, Peshawar, an advertisement was made in the national press. Preliminary selection was made in which 5 candidates were interviewed. Committee recommended name of the appellant and he was appointed as such. Respondent No.1 being next on merit list filed, a writ petition in Peshawar High Court which was allowed. The Supreme Court observed that the High Court is not expected to perform functions of selection Authority in service matters so as to substitute its opinion for that of competent authority.

10. In the present petition, relief in the nature of quo warranto is sought. The facts are therefore clearly distinguishable from the case of Mir Alam Jan, in which case the petitioner claimed his selection in place of the respondent. In Ghulam Muhammad Mallah's case what was challenged was transfer. In Khalil- Mahmood Watto's case again the question was whether A should be selected for sending abroad or B should be selected. In Azim-ur-Rehman Khan Meo's case what was challenged was another's absorption and it was no where pleaded that such absorbed person did not have the requisite qualification for the post. It is settled law that matters in the nature of writ of quo warrant does not fall within the jurisdiction of the Service Tribunal. If any authority is needed one may refer to Abdul Shabbir and 9 others v. Government of Balochistan and General Secretary and 3 others 2001 PLC (C. S.)

771. This petition is therefore held to be maintainable.

12. Section 9-A was inserted in the Sindh Civil Servants Act, 1973 on January 2, 2002 and it was deleted by the Legislature on 26-2-2008. The section was in the following words: "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 in such manner as may be prescribed." A perusal of the section indicates that it starts with a non obstante clause. Therefore the section is to have effect, in a way overriding effect qua the other provisions of the Sindh Civil Servants Act or any other law. But it is applicable only when a civil servant has shown acts of gallantry while performing his duty or very exceptional performance beyond the call of his duties. If these two things i.e. gallantry or exceptional duty are not there, section 9-A could not be attracted. However this aspect had become academic because with effect from 26-2-2008 the section was deleted. In the case of respondent No.4 it was Sindh Home Minister who in his letter dated May 5th 2008 (quoted above) after referring to section 9-A recommended that the respondent No.4 had performed outstanding in quality as well as quantity and as a financial advisor and had shown dedication beyond his duties. What is difficult for us to digest is that how could a Home Minister be assessing authority in respect of a person who does not work in any of the departments within the administrative control of his ministry. What is more startling is that there is no recommendation whatsoever by the Works and Services Department. In fact Secretary Works and Services Department in the summary put up referred to the recommendations of the Home Minister and specifically stated that section 9-A of the Sindh Civil Servants Act, had been deleted. What is conspicuous by its absence from the summary is that there is no recommendation by the Executive Engineer or the Superintending Engineer or the Chief Engineer or the Secretary Works and Services Department or even Minister of that department. In the absence of any such recommendations how can one come to the conclusion that respondent No.4 performed beyond the can of duty and it is indeed difficult to digest thong none of the hierarchy in the department recommended, it is only the Home Minister who chose to poke long arm of his ministerial portfolio into another ministry. Therefore even if section 9-A had not been deleted even then the case of respondent No.4 could not be attracted by section 9-A.

11. In Farhat Abbas's case on appreciation of his excellent and extraordinary performance the appellant was granted out of turn promotion under instructions of Inspector-General of Police. He was subsequently reverted on the ground that promotion could only be granted on the basis of seniority cum-fitness and therefore his promotion had become cause of frustration and heartburning to those who were superseded. The High Court upheld the order of reversion and the Supreme Court observed 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. If 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 could 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."

12. Promotions of civil servants in the Province of Sindh are regulated by the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Section 9-A is quoted above. Under Rule 7 promotion has to be made on the recommendations of Departmental Promotion Committee or Provincial Selection Board. We have not been able to find any provision in the Rules of 1974 or in the Sindh Civil Servants Act, where the competent authority can act without such recommendations and assessment by the concerned Committee or Board. Learned A.A.-G. submitted that the Chief Minister is the competent authority for such promotion. There is no cavil with this position. However learned A.A.-G. conceded that even Chief Minister is duty bound to act in accordance with the law. However, learned A.A.-G. referred to section 24 of the Sindh Civil Servants Act. The said section is in the following words:-- "

24. Saving.

Nothing in this Act or in any rule shall be construed 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 rule."

13. Proviso in this case is very important. Role of the proviso has been laid down by the Supreme Court in Ibrar Hussain and others v. Government of N.-W.F.P. 2001 PLC (C.S.) 856 wherein it has been observed that "Generally three functions are ascribed to proviso:- (1) To exempt something from the enacting clause; (2) to qualify or restrain its generally; (3) and to exclude some possible misinterpretation of it as extending to cases not intended by the Legislature." Looked .at in that context the proviso to section 24 means that where under the Civil Servants Act or by the Rules a provision has been made that the matter shall be dealt with and decided in a prescribed, manner the competent authority is not clothed with the power to decide it in a manner less favourable to any other person. Rules made in the Sindh Civil Servants Act have made elaborate provisions for providing the procedure for dealing with cases of promotion and it is not available to competent authority to ignore those rules and make a decision in a particular case which could have the effect of adversely affecting dozens of other civil servants.

14. Result of the above discussion is that Notification No.SOEII(W&S) 13-34/92 dated July 26, 2008 is held to have been passed without any lawful authority and respondent No.4 is held to be holding the post of Executive Engineer without any authority of law. Needless to observe that if respondent No.4 was an exceptional performer such a performance should be and must have been reflected in I his ACRs and when the matter is placed before the competent Departmental Promotion Committee it should certainly consider performance of the respondent No.4 and his case for promotion along with such other employees who are also eligible for promotion.

15. This Constitutional Petition is disposed of in the above terms. Listed application is also disposed of. H.B.T./M-173/K????????????????????????????????????????????????????????????????????????????????? Order accordingly.