2018 PLP (C (PLC(CS)N)

IJAZ ANWAR, J. - The petitioner has filed this petition under Article 199 (i) & (b) (ii) of the Constitution of Islamic Republic of Pakistan, 1973 in the nature of quo warranto, questioning the Notification No.SO(E.1)E&AD/1-1/2016, dated 06.12.2016, whereby the respondent No.5 was posted against the post of Director Local Fund Audit (BPS-19), Finance Department in his own pay and scale.

2. The petitioner has introduced himself as the senior most Deputy Director (BS-18) of the same department and holding the post since 2010. He alleges that in accordance with the rules, the post of Director is 100% promotion post and can only be filled through transfer, if no suitable person is available for promotion. He claimed that the notification impugned is violation of the recruitment Rules and the government instructions on the subject. He argued that appointment by transfer of the respondent No.5 is without lawful authority and has no legal justification to hold the post of Director, Local Audit Fund (BS-19).

3. The respondents have submitted their comments and alleges that the post of Deputy Director Local Fund Audit is temporarily vacant due to posting of regular Director Local Fund Audit, as Director Fund Small Industry Development Board; therefore, to fill this post temporarily and as stop-gap arrangement, the respondent No.5 was posted in his own pay and scale.

4. The learned AAG and counsel for the respondent No.5 were heard. They also objected on the jurisdiction of this Court and referred to different judgments of the superior court on the lack of jurisdiction of this Court in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan. The learned AAG argued that since the petitioner is claiming his promotion, therefore, cannot maintain the writ of quo warranto.

5. Arguments heard and record perused.

6. The appendix annexed with the Khyber Pakhtunkhwa (Recruitment and Appointment) Rules, 1980, notified by the Government vide Notification No.SOR-II (S&GAD) 2-19/78, dated 04.02.1980 provides the mode of filling the post of Director (BS-19) in the Department of Local Fund Audit, Khyber Pakhtunkhwa for the convenience, it is reproduced:- (a) By promotion, on the basis of seniority-cum-fitness, from amongst the Deputy Directors with twelve years service in BPS-17 and above; or (b) If no suitable person is available for promotion, then by transfer.

7. On examining the rules, it is found that the post of Director (BS-19) is 100% promotion post and can be filled through transfer, if no suitable person is available for promotion. We have before us the seniority list wherein the name of the respondent No.5 is placed at Sr. No.6. He also lacks the twelve years service in BPS-17 as prescribed under the rules. The provincial government has vide circular letter No.SOR-I (S&GAD)1-29/75 (A), dated 13.2.1993 while relying on Rule 9 of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 and referring to the judgment of the Apex Court gave guidelines for filling the higher post in the following manner:- "The grant of higher appointments to junior officers against senior posts amounts to accelerated promotion in view of the decision given by the Supreme Court of Pakistan in the case of Government of Pakistan v. Qazi Abdul Karim. The ministries/ Divisions or Provincial Governments can only fill vacancies in a particular grade by officers of the same grade, and officers in a junior grade will not be appointed against a vacancy in a higher grade".

8. Similarly, Rule 9 of the KPK Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, also provides the mode in which the promotion post is to be filled in temporarily. We have been informed that the post of Director is not available for promotion, as there is only one post and the incumbent promotee has been temporarily posted out from the department, in any case, the law will take its course and no deviation is permissible nor this Court will allow any to take arbitrary decision in violation of law and rules. During the course of arguments, a summary that floated for filling the post of Director, Local Fund Audit has been placed before the Court. We examined it and found that the senior most officer of the department was proposed by the Finance Department (Administrative Department in this case) to be posted as Director, however, when it was placed before the Competent Authority, the name of the respondent No.5 was picked, without any legal justification or reasons that how he has been preferred over the senior officer. This shows no application of mind and violation of the rules. The august Supreme Court of Pakistan in its famous judgment titled "Tariq Aziz-ud-Din and others reported in 2010 SCMR 1301 held as:- "

Fair and transparent discretion, exercise of

Principles

Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion-- Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent

Discretion is to be exercised according to rational reasons which means that; there be finding of primary facts based on good evidence; and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner

Actions which do not meet these threshold requirements are considered arbitrary and misuse of power

Discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such power with the scope of law

All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion

Obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice".

9. In the matter of posting the Apex Court reiterated the Civil Servants (Appointment, Promotion and Transfer) Rules, and held in the following words:- (i) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973

R. 8-B

Appointment on acting charge basis

Object and scope

Vested right

Appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from R.8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973

In case where appointing authority is satisfied that no suitable officer is available to fill the post and it is expedient to fill the same, it may appoint to that post, on acting charge basis, the most senior officer otherwise eligible for promotion in the cadre or service as the case may be".

10. The objection regarding jurisdiction of this Court is misconceived. The petitioner has never claimed his entitlement to the post of Director (BS-19), however, mainly thrown challenge to the appointment of the respondent No.5 regarding his ineligibility, violation of Rules and arbitrariness in posting him. The Apex Court in its judgment reported in PLD 1997 Supreme Court-52 held that any person can lay information to the court regarding a public office being illegally occupied. The person laying such information shall not necessarily be an aggrieved person.

11. We have given our anxious consideration to the arguments of both sides and record of the case, finds ourselves in agreement with the learned counsel for the petitioner, that respondent No.5 could not justify, how can he hold the post of Director, Local Audit Fund (BS-19) firstly, he is not eligible under the Rules, secondly violation of Rule 9 of the (Appointment, Promotion and Transfer) Rules, 1989 in posting him, thirdly notification of posting is arbitrary and without application of mind as the proposal of the department was departed without any justifiable reason and last but not the least it would create a sense of deprivation and heart burning among the senior officers of the department who can better shoulder this responsibility.

12. For what has been discussed above, the impugned notification dated 06.12.2016 is struck down; the writ asked for is accordingly issued with the direction to the respondents to fill the post of Director, Local Fund Audit (BS-19) in accordance with law within a period of two months from the receipt of this judgment. ZC/367/P Petition allowed.