1986 PLP 203 (MLD)

SAJJAD ALI SHAH, J.‑‑This Constitutional petition under Article 9 of the Provisional Constitutional Order, 1981 is filed by Speaker of the Provincial Assembly of Sind against 'Government of Sind through Chief Secretary of Sind. Impugned order in this petition is notification, dated 5th November, 1985 issued by the Chief Secretary, Government of Sind whereby Agha Rafique Ahmed Khan, Additional Secretary of Sind Provincial Assembly has been repatriated to the Sind High Court, with immediate effect. Brief facts giving rise to the filing of this petition are that Mr. Agha Rafique Ahmad Khan is Additional District and Sessions Judge in Sind judiciary and his services were placed at the disposal of the Provincial Government of Sind for appointment as Additional Secretary, Provincial. Legislative Assembly of Sind. Consequently Services and General Administration Department, Government of Sind issued Notification, dated 18th August, 1985 posting Mr. Agha as Additional Secretary, Sind Provincial Assembly in his own pay and rank. It is the case of the petitioner that after the services of Mr. Agha were placed at the disposal of the Sind Provincial Assembly, he was appointed in Grade‑19 as Additional Secretary and then subsequently was promoted as Secretary of the Provincial Assembly and was given Grade‑20 after such approval was obtained from Finance Committee of the Provincial Assembly. It is further the case of the petitioner that the respondent without consulting the petitioner through Notification impugned in this petition has repatriated Mr. Agha to the High Court of Sihd and in consequence High Court has directed Mr. Agha to report for duty to be posted as Additional District and Sessions Judge, Kandhkot. We have heard Mr. Sabihuddin Ahmad, Advocate for the petitioner and Mr. Saeed A. Shaikh, A.G., who was given notice for assisting the Court on the question of maintainability of the petition. We are of the view that this petition is not competent and maintainable for a variety of reasons. Firstly that proper parties have not been joined in this petition. Mr. Agha Rafique, who is most affected person according to the contents of the petition has not been joined as a party or he has no grievance at all. Secondly learned counsel for the petitioner has knot been able to convince us that the petitioner is an aggrieved party as c6ntemplated under Articles 199 of the Constitution and 9 of the Provisional Constitution Order, 1981. It appear that the only grievance of the petitioner is that order of repatriation passed by the respondent was unilateral and was not in accordance with rule 7 of the rules framed by Speaker of the Provincial Assembly in exercise of the powers conferred under Article 87(3), read with Article 127 of the Constitution of the Islamic Republic of Pakistan regulating recruitment of persons to the Secretariat of the Provincial Assembly of Sind. According to this rule appointment in Grade‑17 and above by way of transfer is to be made on tenure basis for a period of three years, which may be extended by appointing authority and such person can be sent back to the parent department by the Secretariat of the Provincial Assembly after consultation with the Government before the expiry of tenure. Sub‑rule 1 of rule 7 clearly provides that such appointment by transfer can be made with concurrence of the Government and no evidence was produced to show that Government had consented specifically for appointment of Mr. Agha for a period of three years On the other hand, it was, argued on behalf of the respondent that services of, Mr. Agha were placed at the disposal of the Provincial Government and he was posted as Additional Secretary, Sind Provincial Assembly in his own pay and rank as clearly appears in the Notification issued by the Government on 18th August, 1985. There is no dispute about the fact that Mr. Agha is a judicial Officer appointed by the Government of Sind under the administrative control of the High Court. His appointing authority is Government of Sind and he is governed b the provisions of the Sind Civil Servants Act, 1973 and rules frame thereunder. If he can be sent on deputation for posting outside the cadre, the parent department can also recall him. Learned A.G. argued that Rule 7 in the rules of the Provincial Assembly is available to the Speaker for taking action if he wants to send back an Officer transferred by the Government before the expiry of his tenure and this rule in n way militates against the powers of the parent department to recall it own, officer. In any case it was further argued on behalf of the respondent that there was no concurrence by the Government on appointment of Mr. Agha for a period of three years. It was argued‑on behalf of the respondent that the petitioner cannot be termed as aggrieved person for the reason that in order to be an aggrieved person it is imperative for party to show that any of his proprietary or personal right, as recognised by law has been invaded or denied. In support of the proposition reliance is placed on the case of Messrs Associated Cement Companies Ltd. v. Pakistan P L D 1978 SC

151. On this premise, it was further argued that petitioner cannot claim as a matter of legal right to have a particular individual as Secretary of Provincial Assembly. He can have Secretary in any Grade or qualifications and the respondent has already undertaken to provide him with another Secretary. Lastly in any case impugned notification has been fully acted upon and implemented in the sense that Mr. Agha has reported to the High Court for duty and requested the learned Chief Justice in writing to be allowed to do so and further requested for joining time which has been granted to him. In these circumstances it can be said that now Mr. Agha is back to his parent department and has already reported for duty. In fact after notification of repatriation the learned Chie Justice had directed Mr. Agha by way of notification to report for 'duty to High Court and, thereafter, vide another notification, dated 27‑11‑1985 posted him as Additional District and Sessions Judge, Kandhkot and he was further directed to join his new assignment immediately: Both these notifications have not been called in question and the learned Chief Justice of Sind High Court is not impleaded as a party. In these circumstances now there remains nothing in the impugned notification which has been fully acted upon and now no cause of action accrues to the petitioner flowing from the notification impugned in this petition. For the facts and reasons stated above, we find no merits in this petition which we dismiss hereby in limine. A.A. Petition dismissed.