2018 PLP (C (PLC(CS)N)

MUHAMMAD IQBAL KALHORO, J.

Petitioners claim to be the officers in Excise and Taxation Department and through this petition have challenged a Notification dated 14.04.2016. This notification has cancelled Notification No.SO(ADMN-1)E&T/3(96)/98(Prov-II) dated 28.01.2016 issued in compliance of the judgments of the Honorable Supreme Court reported in 2013 SCMR 1752 and 2015 SCMR 450 withdrawing the posting of respondent No.5, Ghulam Hyder Mallah as Excise and Taxation Inspection (BS-14), and thereby restoring respondent No.5.

2. Briefly the facts set out in the petition are that the respondent No.5 was appointed as Jr. Clerk in the Excise and Taxation Department in the year 1990 and continued to serve as such until 06.11.2014 when through an order he was posted as Excise and Taxation Inspector with immediate effect and given promotion w.e.f. 15.10.2004. His name was placed at Sr. No.291 in the Provisional Seniority List of Excise and Taxation Department issued on 23.02.2007. However, thereafter, it is alleged that he surreptitiously and fraudulently managed to get his name placed at Sr. No.10 in the said seniority list, and based on such seniority he was promoted as Assistant Excise and Taxation Officer (BS-16) over and above 282 Excise and Taxation inspectors vide Notification dated 27.06.2007. Since then he has held many posts including the charge of Excise and Taxation Officer (ETO). He is known for his notoriety and embezzlement and misuse of authority. Against him an inquiry was also held, but he did not appear in it and hence against him a report was made. That even the high officials including Minister, Excise and Taxation Department was unhappy with respondent No.5 and had been writing against him in his personal file making his service record as dubious. In view of his suspicious service record, the promotion of respondent No.5 was cancelled and he was demoted as Jr. Clerk vide notification dated 28.01.2016 in compliance of the Judgments of Honorable Supreme Court. Respondent No.5, however, filed departmental appeal against the above action before respondent No.1/Chief Secretary, Government of Sindh, who constituted a Committee to look into the matter, which recommended his restoration, resultantly vide impugned notification issued by respondent No.3/ Secretary Excise Taxation and Narcotics Control Department, the notification dated 28.01.2016 was cancelled and respondent No.5 was restored as Excise and Taxation Inspector.

3. Respondent No.5 in his counter affidavit has questioned maintainability of this petition on the ground that the petitioners being civil servants have essentially challenged his posting and seniority which relate to the terms and conditions of service, and cannot be challenged under the constitutional jurisdiction. The petitioners have failed to show mandatory ingredients of writ of quo-warranto for invoking constitutional jurisdiction. He has stated that although the petition is guised as pro bono publico, but in fact it has been filed for the purpose of personal gains as the petitioners are junior to him and are seeking seniority over and above him. According to him, he was not appointed as Jr. Clerk but as Excise and Taxation Inspector in July, 1990 and was sent to undergo necessary training for a period of three months. At the completion of training he was not given posting order but was posted as Jr. Clerk (BS-07), which he joined under protest, and meanwhile kept making requests to the departmental authorities for posting in accordance with his appointment order. Ultimately, the competent authority accepted his request and he was posted as Excise and Taxation Inspector as per his original appointment order subject to regularization by the Departmental Selection Committee, which subsequently regularized him on the above post unanimously. As to the issue of seniority, his claim is that on filing of objections his seniority was determined in accordance with rules 10(1) and 11-A of Sindh Civil Servants (Appointment, Promotion and Confirmation) Rules, 1974, and he was placed along-with his batch-mates. That his seniority was challenged by one Abdul Karim Lashari before Service Tribunal but his appeal was dismissed in non-prosecution. Further, he has maintained that the allegations levelled against him by the petitioners are false and fabricated and are aimed at maligning him. He has also stated that the inquiry initiated against him was closed because he was found innocent. He has claimed that notification dated 28.01.2016 was issued under misconception and due to misinterpretation of Honorable Supreme Court's orders which were not applicable on his case as such he preferred the appeal to the Appellate Authority in accordance with the rules which was allowed by the Committee constituted by the Government for examining such cases in its meeting held on 22.03.2016; and in consequence whereof the impugned notification was issued. His further claim is that in the petition allegations requiring factual inquiry have been levelled hence the same is not maintainable. In support of his case, he has filed Photostat copies of the application and appointment order dated 06.08.1990.

4. Learned counsel for the petitioners in his arguments stated that the impugned notification was arbitrary, illegal and not warranted under the law; that notification dated 28.01.2016 demoting respondent No.5 as Jr. Clerk was rightly issued in compliance of the judgments of the Honorable Supreme Court which respondent No.3 was not competent to withdraw/reverse due to principle of estoppel; that respondent No.5 worked as Jr. Clerk for almost one and a half decade till 2004, but then surreptitiously he was posted as Excise and Taxation Inspector by the Advisor to Chief Minister who had no such power in law. He further contended that the said order of the Advisor to Chief Minister is illegal, unlawful, and arbitrary; that the Honourable Supreme Court in Para 154 of the judgment rendered in Civil Review Petition No.193/2013 has clearly observed that the department is not authorized to reverse decision once taken while implementing the judgment, thus the impugned decision reversing the notification issued in compliance of the judgments of the Honorable Supreme Court is illegal; that the impugned notification is in violation of Articles 4, 5, 9, 14 and 25 of the Constitution. Learned counsel in support of his arguments relied upon the case laws reported in 2015 SCMR 456 and 2017 SCMR 206.

5. Canvassing the opposite view, learned counsel for respondent No.5 argued that the petition was not maintainable as the petitioners were essentially questioning the seniority of respondent No.5 which relates to the terms and conditions of service; that the case of respondent No.5 did not come within the issues of absorption, deputation and out of turn promotion decided by the Honorable Supreme Court in the above referred judgments as such notification dated 28.01.2016 was issued wrongly; that in Para No.154 of the judgment, the Honorable Supreme Court has debarred only this court from taking cognizance in the suits and C.Ps. filed by the officers de-notified in compliance of the above judgments, but here the respondent was restored to his position through departmental appeal in accordance with the law and relevant rules, therefore, his restoration is not hit by the dictum of the judgments of the Honorable Supreme Court: that the petitioners were not able to establish how they were aggrieved by the impugned notification which had simply revived the position in respect of respondent No.5 that was already in existence, and that in any case they should approach the Honorable Supreme Court and file contempt application, if there has been any violation of said judgments.

6. We have considered the submissions of the parties and have perused the relevant material available on record. As to the question of maintainability, we are of the view that this petition has been filed for the writ of quo warranto against respondent No.5 to show under what authority of law he is holding the office. The fact that the petitioners are working in the same department would not ipso facto bring the relief sought by them within the terms and condition of their service so as to render this petition non-maintainable. Because in our view once an action is brought before the High Court and it prima facie indicates the incumbent holding the public office against the law, the writ of quo warranto would be maintainable. The court would not throw out such petition merely on the prospect of the petitioner gaining some benefit at the end, unless it directly relates to the terms and conditions of his service. The primary focus would be on holding enquiry into the authority under which the incumbent claims to hold public office. In the petition for such writ, it is not necessary either for the petitioner to fulfill the condition of showing himself within the meaning of aggrieved person. He is only required to bring information before the High Court against usurpation of the public office by the incumbent and the Court would be competent to enquire from such person as to under what authority of law he claims to hold that office. In the present case, the petitioners have shown that respondent No.5 is holding the public office from which he was removed incompliance of the orders of the Honorable Supreme Court. This information, in our view, is sufficient to entail proceedings to enquire into the matter and ask respondent No.5 to show as to under what authority he is holding the office. Therefore, in our estimation, the objection over the maintainability of this petition raised by respondent No.5 does not appear to be sustainable and is thus overruled.

7. The case of respondent No.5 is that he was appointed as Excise and Taxation Inspector in 1990 and was sent to the training. And on completion of his training when he reported his joining, he was not allowed and instead was posted as Jr. Clerk which he accepted under protest. However, meanwhile he kept making appeals to the Minister concerned, and ultimately in response to his appeals vide order dated 06.11.2004 he was appointed and posted as Excise and Taxation Inspector under the orders of Advisor to Chief Minster. Thereafter, under due process of law, his seniority was determined and accordingly he was promoted as Assistant Excise and Taxation Officer (BS-16). He has further claimed that his case does not come within the purview of the judgments of Honorable Supreme Court as he was neither absorbed and/or promoted out of turn, nor he was on deputation in the department, hence the notification dated 28.01.2016 withdrawing his posting as Excise and Taxation Inspector was wrongly issued, and that mistake was rectified on his appeal under the relevant law through the impugned notification.

8. The entire case of respondent No.5, however, has been negated by comments of respondent No.3. He has stated that respondent No.5 was appointed as Jr. Clerk and then he applied for Excise and Taxation Inspector and was selected but he was not given the posting order. Later on his application, his posting as Excise and Taxation Inspector was ordered by Advisor to Chief Minster. Learned Advocate General Sindh on whose advice, among others, the impugned notification is purported to have been issued in his letter No.AG-1373 of 2016 dated 26.03.2016 to the Law Secretary has made the same statement of facts that respondent No.5 was appointed as Jr. Clerk. There is no mention of him being appointed as Inspector first and/or that he was denied the said posting and/or he accepted the post of Jr. Clerk under protest and meanwhile made appeal which was accepted by the Advisor. Their stance is different and tends to undermine wholly the claim of respondent No.5 of direct appointment as Excise and Taxation Inspector. And now to the respondent No.5's own case, he in order to establish his case has submitted a copy of application for appointment of Inspector in Excise and Taxation Department with his reply, which appears to be addressed to the Minister concerned and on this application the Minister has passed the order that "he may be appointed", and thereafter, as per his claim, he was appointed so. It bears mention that there is no provision in the Sindh Civil Servants Act, 1973 and the Rules framed thereunder to provide for any such authority to the Minister. Therefore, such endorsement and any action thereon would have no importance in law and, if it is presumed that in pursuance of that, the respondent No.5 was appointed; such appointment would be without lawful authority and illegal. The next document is claimed to be the appointment order dated 06.08.1990: we have seen this document and would say firstly that this is not the appointment order and secondly the very language of this letter refutes the claim of respondent No.5. It indicates that respondent No.5 had resumed his duty as Excise and Taxation Inspector after appointment (which is contrary to his claim of not being posted so). And it would also bear a question that if it was the case and he had resumed the duty, then how respondent No.5 is claiming that he was not given the said posting, and instead was posted as Jr. Clerk. In our view, these two documents have further weakened the case of respondent No.5.

9. As for the comments of respondent No.3 and advice of learned Advocate General that respondent No.5 was appointed as Jr. Clerk and then subsequently was selected as Excise and Taxation Inspector but was not given posting, it must be mentioned that no record is available to establish the same. Nothing is shown about any such selection process, the recruitment committee, application of respondent No.5, details of the successful candidates, offer letter, etc. In absence of any such material, it would not be wrong to state that not only the then learned Advocate General conveyed his advice to Law Secretary without any substance to support it, but respondent No.3 also made misguiding comments in the petition that respondent was later on selected as Excise and Taxation Inspector without placing on record any evidence to support the same. And it may be noted that such stance is in total disconformity with the order dated 6.11.2004, available at page 63 of the file, which shows that on representation/appeal (and not through any selection process), respondent No.5 was appointed as Excise and Taxation Inspector by Advisor to Chief Minster. And on the same date he was posted as such with immediate effect, however, with the condition that he shall be required to appear before Departmental Selection Committee for regularization. It is surprising that when as per claim of respondent No.5 he was already appointed on a permanent post on regular basis, which for some reason was not given to him until his appeal was accepted, then why he was made to appear before the Departmental Selection Committee for regularization, because in such event his first appointment in 1990, the basis of his seniority, would appear to be on non-regular basis. And if it is so, then the question would be how and on what merits his appeal/ representation was allowed and he was appointed directly in BS-14 as Excise and Taxation Inspector by the Advisor (which itself is in defiance of Sindh Civil Servants Act, 1973 and Rules framed thereunder). Then strangely on 19.06.2006 respondent No.5 on the recommendation of Departmental Selection Committee was not only regularized on the said post but his seniority was reckoned from the date of his appointment i.e. 29.07.1990, although there was no record of his appointment on the said date on regular basis. Further, such seniority also seems to be even against the terms of Order dated 6.11.2004, which shows that he was required to appear before Departmental Selection Committee for regularization, meaning thereby that his purported appointment was conditional and did not confer on him any right of seniority. It is relevant to note here, and it is in addition to disclarity discussed above on the selection of respondent No.5, that in law the Advisor to Chief Minster had no power to appoint respondent No.5 as Excise and Taxation Inspector in BS-14 directly bypassing the necessary requirements of the Sindh Civil Servants Act, 1973 and Rules framed thereunder, which, among others, entail publication of advertisement, appointment of recruitment committee, interview, offer letter, medical, etc. and on that score only the appointment of respondent No.5 as Excise and Taxation Inspector has become doubtful. Perceived in the said backdrop, it is not difficult to note that respondent No.5 was holding the office of Assistant Excise and Taxation officer without any legal authority, and in violation of the above referred judgments of Honorable Supreme Court.

10. Notification dated 28.01.2016 shows that posting of respondent No.5 as Excise and Taxation Inspector was withdrawn/cancelled in compliance of judgments reported in 2013 SCMR 1752 and 2015 SCMR 450, but then vide impugned notification, the said notification was withdrawn and respondent was restored to his position. The impugned notification is purported to be issued on the advice of learned Advocate General in addition to recommendation of the Review Committee of Excise, Taxation and Narcotics Department. Insofar as the advice of Advocate General is concerned, we have already discussed above that it was communicated without any material to justify the same, and as to the departmental recommendation, it may be mentioned that we have gone through the minutes of meeting held on 08.04.2016 submitted by respondent No.5 along-with his comments. From item No.39 onwards at page No.6 thereof, the case of respondent is discussed; the Departmental Committee has firstly mentioned the facts and then has held that law department has opined that the notification dated 26.01.2016 has no validity which requires to be withdrawn, and the Advocate General has given opinion that said notification has no validity which requires to be withdrawn as per the observation of Regulation Wing of SGA&CD that the case of Mr. Mallah (respondent No.5) does not come within the ambit of the judgments of Supreme Court of Pakistan. And against it we have found that SGA&CD in its letter dated 30.03.2016 addressed to respondent No.3 on the appeal of respondent No.5 has simply referred to the opinions of the Law Department and the Advocate General respectively and has requested respondent No.3 to act accordingly. The Law Department in its letter dated 28.03.2016 has merely endorsed the above stated opinion of Advocate General and the Advocate General in its letter dated 26.03.2016 has based his opinion on observation of Regulation Wing of SGA&CD and SGA&CD has only relied upon the opinions of Law Department and Advocate General. It is not borne out of any papers as to how this opinion that the case of respondent No.5 does not come within ambit of Honorable Supreme Court's judgments originated. It appears to be like a circle, every one depending on each other, it may or may not be reflecting as to how the issues are being dealt with and managed by the Sindh Government, but one thing is obvious that the Departmental Committee, which reviewed the case of respondent No.5 and on whose recommendation the impugned notification has been issued, did not apply its independent mind and look into the material, but merely relied upon the advice of learned Advocate General and opinion of law department (which, as discussed above, are based on no material) to form its opinion, which in view of such facts and circumstances cannot be endorsed.

11. Be that as it may, it must be mentioned that respondent No.5 was de-notified in compliance of the judgments of Honorable Supreme Court, and in such event neither any Departmental Committee nor the Advocate General or any other department or even this court was competent to review the case of respondent No.5 and hold that his case does not come within the purview of the orders of Honorable Supreme Court. The Honorable Supreme Court while seized with the same issue has held in its order dated 27.09.2016 in Criminal Original Petitions Nos.106 to 111 of 2016 that "... Once the employees were de-notified in compliance with the judgments of this Court, the employees aggrieved have to approach this Court in review instead of obtaining interim orders from the Sindh High Court

The notifications shall be issued forthwith and the aggrieved, if any, shall be at liberty to approach this court in review, if advised, as the proceeding before us confirm the fact that many of the employees have obtained orders from the Sindh High Court in different suits and or on the recommendation of the H.R. Committee. Neither the H.R. Committee nor the High court was competent to sit in appeal against the findings of this Court, by granting relief of this nature, as the aforesaid judgments of this Court can only be interpreted by this Court and not any other forum, as mandated by the Constitution".

12. In view of such categorical view and directions of the Honorable Supreme Court, there is left no room to dilate upon the competency of Departmental Committee and the Advocate General or any other department to decide whether or not the case of respondent No.5 falls within the ambit of judgments of Honorable Supreme Court. Thus, it is obvious that respondent No.3 has conducted himself illegally and wrongly by purportedly acting on the opinions of Law Department and the Advocate General in issuing the impugned notification whereby cancelling the notification dated 28.01.2016 issued in compliance with the judgments of Honorable of Supreme Court. Consequent to above discussion, the petition is allowed, the impugned notification is declared to be illegal and of no consequences having been passed without legal authority. The petition stands disposed of in above terms. ZC/M-158/Sindh Petition allowed.