SHC tells secretary to file service profile of assistant commissioners

The Sindh High Court has directed the services secretary to submit the official service profile of assistant commissioners who were appointed on the directions of the chief minister by bypassing the Sindh Public Service Commission (SPSC).

The direction came on petitions of Waheed Ali against the private respondents to vacate the public offices they were holding on the ground that they were not qualified to hold the office as their initial appointments as assistant commissioner (BPS-17) in Ex- PCS Cadre by way of nomination by the chief minister under Rule 5(iv)(b) and 5(c) of the West Pakistan Civil Service (Executive Branch) Rules, 1964 (Rules-1964) were unconstitutional and their subsequent promotions at times were in violation of Article 199 (1)(b) (ii) of the Constitution of 1973.

The petitioner’s counsel submitted that the appointments of the private respondents on the aforesaid posts were made by the chief minister in violation of articles 240 and 242 of the constitution. He submitted that the petition cannot be dismissed on the purported ground of laches for the reason that laches is not attracted in the writ of quo warranto, where the illegal appointment in violation of the constitutional provision has been challenged before this court under Article 199(1) (b) (ii) of the constitution.

The counsel argued that on the date when the writ of quo-warranto was filed, all the private respondents were holding public offices; therefore, the court has the authority to record findings as to whether the appointments of the private respondents to the public office have been made in consonance with the mandate granted by the constitution.

He submitted that SPSC has to conduct tests for initial recruitment to civil posts connected with the affairs of the province in BS-16 to 22 except those specified in the schedule; therefore, the assistant commissioners’ posts ought to have been made through the competitive process of selection by the SPSC. He submitted that the Sindh government and/or the competent authority was not competent to bypass this mandatory requirement of law and substitute a parallel mechanism to appoint the private respondents in BPS-17 against the language of the Rules of 1974, which were framed under the dictates of the Sindh Civil Servant Act of 1973 as mandated under Article 240 of the constitution.

The counsel submitted that Chief Minister Sindh was not competent under service laws to make the appointment in BPS- 17 without advertisement and fulfilling other codal formalities as required under the law.

He submitted that the posts of private respondents were illegally taken out of the purview of the SPSC to extend favor to them as they were not eligible to appear in the competitive process, therefore they approached the political figures in the government of Sindh to appoint them on Ex-PCS cadre in BPS-17, which was a political favour, thus their appointment was/is without lawful authority and falls within the ambit of Article 199 (1)(b) (ii) of the constitution.

The counsel argued that the private respondents do not possess the prescribed qualification and experience for the subject posts and as such their applications were politically motivated and erroneously entertained by the chief minister in the years 1991 and 1992; therefore, a writ in the form of quo warranto needs to be issued against the private respondents. He requested the court to direct to the private respondents to return the salaries and other benefits received by them during the period of their illegal appointments on such posts.

The private respondents’ counsel submitted that they were appointed under Clause (b) of sub-rule (4) and clause (c) of sub-rule (5) of Rule-5 of the West Pakistan Civil Service (Executive Branch) Rules, 1964, with the approval of the competent authority, i.e. the chief minister.

They submitted that the private respondents had been appointed under Rule 5 of the SPSC (Function) Rules, 1990 by taking the post from the purview of the SPSC with the approval of the competent authority, i.e. chief minister, Sindh while Rule 5 of the SPSC (Function) Rules, 1990 had been omitted in the year 1997 through a notification in1997.

They submitted that the Sindh government had also repealed to the West Pakistan Civil Service (Executive Branch) Rules, 1964 through a notification in March 2018. They said the Supreme Court had also disposed of its suo motu proceedings under which the rules and vires have been considered.

They submitted that the private respondents passed a departmental examination and requested the court to dismiss petitions.

The additional advocate general submitted that the chief minister was empowered to appoint the private respondents as assistant commissioners in the ex-PCS cadre under Rule 5 of the SPSC (Function) Rules 1990 read with rule 10(b) of the Sindh Civil servants (Appointment, Promotion, and Transfer) Rules, 1974, without reference to the SPSC.

He submitted that the private respondents in all petitions were rightly appointed and promoted under the law and their appointments were protected by the judgment of the high court on September 6, 2019.

A division bench comprising Justice Mohammad Iqbal Kalhoro and Justice Adnan-ul-Karim Memon observed that some of the private respondents were not in attendance though they were

served notices, and perhaps they had chosen to remain absent to defend their case.

The court observed that while examining the case of the parties, some issues had cropped up. IT observed that it has decided to fix these matters for rehearing with notices to all private respondents to appear in person with their service profile just to see whether they are on the verge of retirement or otherwise.

The court directed the secretary services to appear in person along with the official service profile of the private respondents, and said after hearing and examining the record, further orders will be passed.