2012 PLP (C (PLC(CS))

SAJJAD ALI SHAH, J.-- Through instant petition, the petitioners who are Assistant District Public Prosecutors inducted in Criminal Prosecution Service of Sindh vide Notification dated 11-2-2008 from Police Department on account of exercising one time option as envisaged under the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2007, have impugned notification dated 25-3-2011 whereby the Prosecutor-General Sindh had transferred the petitioners from Hyderabad to Umer Kot. Mr. Noor-ul-Haq Qureshi, learned counsel appearing for the petitioners contends that all the three petitioners were working in Police Department as acting Prosecuting Deputy Superintendent of Police (PDSPs) and after the promulgation of the Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2006 (now Sindh Act IX of 2010) by exercising one time option on 11-2-2008 Joined Criminal Prosecution Service of the Province. The petitioner after having been inducted in Criminal Prosecution Service of the Province were posted as Assistant District Public Prosecutors at Hyderabad where they were performing their duties till date when the respondent No.3 vide Order dated 25-3-2011 transferred all the three petitioners from Hyderabad to Umer Kot. Per learned Counsel though in terms of section 5(2) of the Act, 2009 the administration of the service vest in the Prosecutor General but he has not been entrusted with any power to transfer any District Public Prosecutor, Deputy District Public Prosecutor and Assistant District Public Prosecutor from one district to another. Learned Counsel while referring to section 14 of the Act IX of 2010 contends that the petitioners are civil servants in terms of Civil Servants Act, 1973 and, therefore, their transfer and posting is to be regulated in terms of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and in accordance with the Entry No.3 of the Table provided in Sub-Rule (2) of Rule 9 the authority to transfer an officer of (BS-17) vest with the Chief Secretary, therefore, the Order dated 25-3-2011 passed by the Prosecutor General be declared void ab initio. In the last learned counsel while referring to the Judgment of this Court in Constitutional Petitions Nos.D-837 and D-980 of 2010 contends that this Court in similar circumstances when the Assistant Prosecutor-General and Deputy Prosecutor-General were transferred declared that their services cannot be placed in a particular district. On the other hand Mr. Shahadat Awan, learned Prosecutor General Sindh while referring to subsection (2) of section 5, subsection (1) of section 6 and subsection (1) of section 9 contended that a perusal of the referred provisions would reveal that the Prosecutor-General is not only the Incharge of the entire Prosecution Service in the province but the administration of the service also vest in Prosecutor-General and there cannot be any effective administration unless the Prosecutor has the power to transfer Prosecutors working under him from one district to another. In support of his contention learned counsel has placed reliance on the judgment of the apex Court in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445). Likewise Mr. Allah Bachayo Soomro, Learned Additional Advocate-General for the Government of Sindh while referring to the provision of subsection (1) of section 5 has contended that the Government has only been entrusted with General Superintendence over the service to ensure achievement of the objects of the Act IX of 2010 whereas, the administration of the service has been entrusted to the Prosecutor-General who is not only the Head of Service in terms of subsection (1) of section 6, but also exercises control and has the administration of the entire service and there can be no effective administration and control for the service unless the Prosecutor-General is empowered to transfer the Prosecutor working under his administration and control from one Court to another or from one district to another. Learned Additional Advocate-General, therefore, contended that the order of the Prosecutor General is in accordance with the spirit of the Act IX of 2010 and the instant petition is liable to be dismissed. We have heard the learned counsel for the petitioners and learned Prosecutor-General as well as learned Additional Advocate-General and have minutely perused the record as well as case-law cited at bar. In order to appreciate the contentions of the respective parties it would be appropriate to first examine the relevant provisions of the Act IX of 2010 entrusting the administration and control of the service on the Prosecutor-General vis-a-vis Provincial Government. The service has been established by the Government as provided by section 3 of Act IX of 2010, which reads as follows:-- Section 3 "Government shall establish and maintain a Service to be called the Sindh Criminal Prosecution Service." Whereas section 5 of Act IX of 2010 provides for the Control and Administration in the following words:-- Section 5.(1) Government shall exercise general superintendence over the Service to ensure achievement of the objectives of this Act. (2) The administration of the Service shall vest in Prosecutor-General. (3) A Public Prosecutor, an Additional Prosecutor-General, a Deputy Prosecutor General and an Assistant Prosecutor-General shall perform their functions under the control and the supervision of the Prosecutor-General and general superintendence of the Government. (4) Subject to the sub-clauses (1) and (2) control of all Prosecutor within a District shall work under the supervision of the District Public Prosecutor." The appointment of Prosecutor General is provided in Section 6, which reads as follows:

"6.(1) Government shall appoint a Prosecutor General, who shall be the Head of the Service on such terms and conditions, as may be determined by Government. (2) The terms and conditions of service of the Prosecutor General shall be varied during the term of his office. (3) The Prosecutor-General shall hold office for a non- extendable period of three years." Whereas section 14 of the Act IX of 2010 provides for the application of Sindh Civil Servants Act, 1973 and rule made thereunder to the members of the service, including the staff, in the following words:-- "

14. Subject to the provisions of this Act and rules, member of the service including the staff, shall be appointed and governed under the Sindh Civil Servant Act, 1973 (Sindh Act No.14 of 1973) and rules made thereunder." Bare reading of the provisions reproduced above make it very clear that the Prosecutor General is the Head of Service and the administration and control of the service solely vest in him and the Government has only retain the power to exercise general superintendence over the service and that too only to ensure achievement of the objectives of the Act. It is further important to observe that the objectives of the Act are also to be achieved through Prosecutor General as subsection (1) of section 9 provides that the Prosecutors shall be responsible for the conduct of prosecution on behalf of Government. On the other hand section 14 reproduced above provides for the application of Sindh Civil Servants Act, 1973 and the rule made there under i.e. Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, however the application of Act, 1973 as well as Rules, 1974 are made subject to the provisions of Act IX of 2010. Furthermore the minute scrutiny of the provisions of Act IX of 2010 reveals that there is no provision which deals with the transfer of a members or the staff of the service and therefore, the question which require consideration is as to whether the administration and control of the service which in terms of section 5 vest in the Prosecutor-General could be construed in a manner to include the power to transfer a member or staff of the service by the Prosecutor-General. The term "ADMINISTRATION" has been defined in Black's Law Dictionary as:

"Management or conduct of an office or employment; the performance of the executive duties of an institution, business, or the like. In public law, the administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs or agencies." The Chambers 21st Century Dictionary defines "ADMINISTRATION" as:-- "the directing, managing or governing of a company's affairs, etc. a period of government by a particular party." Whereas the term "CONTROL" has been defined in Black's Law Dictionary as:-- "To exercise, restraining or directing influence over. To regulate; govern; dominate; curb; to hold from action; overpower; counteract; govern." Whereas the Chambers 21st Century Dictionary defines the term "CONTROL" as:-- "authority or charge; power to influence or guide - take control." The Indian Supreme Court in the case of the State of West Bengal. v. NRIPENDRA NATH (AIR 1966 SC 447), while interpreting similar language employed in Article 235 of Constitution of India which confers control by the High Court over District Courts held that word 'control' would include the power to take disciplinary action and all other incidental and consequential steps to effectuate this end and made the following observations:-- "The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the Court but contemplates disciplinary jurisdiction over the Presiding Judge." Likewise the Supreme Court of India in the case of Corporation of the city of Nagpur v. Ramchandra G. Modak and others (AIR 1984 SC 636) has examined the expression control while interpreting the provision of section 59 of City of Nagpur Corporation Act, 1950, which reads as follows:

"Section 59(3).

Subject, whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner who shall also

(a) ............................................................................. (b) exercise supervision and control over the acts and proceedings of all municipal officers and servants, and, subject to the rules or bye-laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances." (Emphasis ours) The controversy has arisen from the decision of Bombay High Court whereby an order suspending two employees was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner, who was not competent to suspend the respondents' pending departmental inquiry. The High Court was of the view that the competent authority to pass order of suspension against the respondents was the Corporation itself and not the Chief Executive Officer. The Supreme Court after detailed discussion concluded in the following terms:-- "Thus Clause (b) of section 59(3) in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision and control over the acts of Municipal officers and servants. It may be noticed that the said Clause (b) is preceded by the words 'vests in the Commissioner'. When the words 'control' and 'vests' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation." In the case of Mehram Ali v. Federation of Pakistan and others PLD 1998 Supreme Court 1445) while construing expression "the supervision and control over the subordinate judiciary" used in Article 203 of the Constitution (Ajmal Mian, C.J) was quoted from the case of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Kar. 404):-- "I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers." In this context a learned Single Judge of the Lahore High Court in the case of Razia Sultana v. Razia Begum PLD 2003 Lah. 27 while dilating on the object and rationale of Article 203 of the Constitution, which provides that "Each High Court shall supervise and control all Courts subordinate to it" construed expression control as under:-- "The word "control" is comprehensive enough to include the general superintendence of the working and administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at to advance the judicial independence and by no means impede or frustrate the very object and purpose. " The expression administration in the light of what has been discussed above presupposes management or executive duties of an institution and there cannot be an effective management nor executive duties of an institution can be performed effectively unless the administrator or the executive of an institution is equipped with complete power and has total control over the member of the institution and such administration and control is useless and ineffective if it is not accompanied by disciplinary powers. It is further important to observe that subsection (2) of section 5 which speaks of "administration of Prosecutor General" is preceded by the words "vest in the Prosecutor General" and when the words administration of the service vest in Prosecutor General read together, they are strong terms which convey absolute administration in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the administration and control of the servants and officers of the service. (Corporation of city of Nagpur "supra") Beside Act IX of 2010 not only vest the administration of the Service in the Prosecutor-General and give him control over the service but also describe him as "Head of Service" and a Head of Service in whom the legislature has not only vested the administration of service but also the control can safely be held as sole custodian of the service with all powers to effectuate its administration over the service including power to transfer the member or staff of the service, being the best judge to post members according to their experience/expertise and perhaps for this very reason the legislature has made the application of Sindh Civil Servant Act, 1973 and the rules made there under subject to the provisions of Act IX of 2010. In view of what has been discussed above this petition does not find favour and is therefore dismissed. S.A.K./S-88/K Petition dismissed.