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2024 P L C (C.S.) 1402

[Sindh High Court]
Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ
EIJAZ ALI
Versus
PROVINCE OF SINDH through Chief Secretary and 4 others
Constitutional Petition No.D-5270 of 2023, decided on 19th February, 2024.
(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974--
-
----R.8-A(5)---Constitution of Pakistan, Art.199(1)(b)(ii)---Writ of quo warranto---
Scope---Question of "Fitness", determination of---Transfer/posting of a junior
officer in presence of senior officers firstly on his "Own Pay and Scale" (OPS) and
then permanently against promotion post of Inspector General of Prison---Effect---
Contention of the respondent was that petitioner was not an aggrieved person and
had no locus standi to file the constitutional petition and post in question was to be
filled on merits instead of "seniority-cum-fitness" basis---Validity---Selection Post
could be filled on merit and the officer fit in all respects could be appointed as IG
Prison Sindh, and in such circumstances, the Sindh Service Tribunal had no
jurisdiction over the question of determination of "fitness" of a civil servant,
however, the question of "eligibility" was different from the question of "fitness"
which was not subject matter of this case---Any person can lay information to the
court regarding a public office being illegally occupied---Person laying such
information shall not necessarily be aggrieved---There is much difference between
the Writ of Quo Warranto and Mandamus---Mandamus also differs from writs of
prohibition or certiorari in its demand for some activity on the part of the body or
person to whom it is addressed for the performance of public duty and commands
the person to whom it is addressed to perform some public or quasi-public legal
duty, which he has refused to perform, and the performance of which cannot be
enforced by any other adequate legal remedy---Party should be an aggrieved party
having no other adequate and efficacious remedy---Article 199(1)(b)(ii) of the
Constitution shows that a person performing duties in connection with affairs of the
Province can be required to show under what authority he is holding a particular
public office and for that purpose, the petitioner therein may not be required to be
an aggrieved person---Constitution petition was allowed accordingly.
Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 rel.
(b) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974--
-
----R.8-A(5)---Promotion post---Appointment of juniors on acting charge basis in
violation of rules---Effect---Name of respondent was placed at Sr. No.4 in the
seniority list, who also lacked twenty-two years of service in BPS-17 and above
with successful completion of mandatory training viz. National Management

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Course (NMC) at the National Institute of Management (NIM) as prescribed under

the rules---Grant of higher appointment to junior officer against senior post
amounts to accelerated promotion---Respondent department was required to
appoint a qualified person to the post of IG Prison BPS-21 as per the relevant
Recruitment Rules and not otherwise---Constitutional petition was allowed.
(c) Sindh Civil Servants Act (XIV of 1973)---
----S.9---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974,
R.8-A(5)---Promotion/appointment on higher grade on "Own Pay and Scale"
(OPS)---Legality---Government makes such appointments in exigencies as a 'stop-
gap' arrangement whereas in the present case, recruitment rules were already in
field but the respondent-department deemed it fit to post a junior officer as IG
Prison Sindh on OPS which act on the part of respondents was against the law---
Constitutional petition was allowed.
Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189
and Khan Muhammad v. Chief Secretary, Government of Balochistan Quetta and
others 2018 SCMR 1411 rel.
Haider Waheed and Muhammad Asad Tola for Petitioner.
Ali Safdar Depar, A.A.G along with Mir Muhammad Channa Section Officer
Prison, Home Department, Government of Sindh for Respondents Nos.1 to 3.
Nemo for Respondent No.4.
Muhammad Arshad Khan Tanoli for Respondent No.5.
Date of hearing: 19th February, 2024.
JUDGMENT
ADNAN-UL-KARIM MEMON, J.---In this Constitutional Petition under
Article 199(i)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner Eijaz Ali has challenged the Transfer and Posting of respondent No.5 as
Inspector General of Prisons and Correction Service, Sindh, Karachi, BS-21 (IGP)
on his Own Pay and Scale (OPS), vide Notification dated 13.10.2023 and
subsequent Notification dated 01.11.2023, whereby respondent No.5 has been
permanently transferred and posted as IGP.
2. The case of the petitioner in nutshell is that respondent No.5 is serving as
Deputy Inspector General of Prisons and Correction Service, Sindh in BS-20
(DIGP) and now holding the post of IGP in violation of Recruitment Rules notified
on 16.09.2022, whereby the post of IGP can only be filled by promotion amongst
the DIGP on seniority cum fitness basis, whereas the respondent No.5 is junior to
the other officers of Prison Department as per seniority list issued on 29.08.2023;
and, his name is appearing at serial No.4. It is the case of the petitioner that
respondent No.5 is not fit and proper person to hold the post of IGP in terms of
Rule 8-A of the Sindh Civil Servants (Appointment Promotion and Transfer) Rules,
1974, (APT Rules, 1974) which provides that if the post reserved for promotion and
the most senior civil servant belonging to the same cadre or service, is eligible for
promotion but does not possess the specified length of service, then the competent

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authority may appoint him to that post on an acting charge basis. It is also the case
of the petitioner that initially respondent No.5 was posted to look after the charge
of the post of IGP as a stop-gap arrangement, till the posting of a regular officer,
but subsequently, he was given permanent posting vide Notification dated
01.11.2023, which has triggered the cause to the petitioner to approach this court by
calling in question the appointment of respondent No.5 on the ground that it was
undue favor extended to him, which is against the basic spirit of law and dicta laid
down by the Supreme Court in its various pronouncements.
3. Mr. Haider Waheed, learned counsel for the petitioner, has contended that the
petitioner has filed this petition under Article 199(i) and (b)(ii) of the Constitution
of the Islamic Republic of Pakistan, 1973 like Quo Warranto, questioning the
Notification dated 13.10.2023 and subsequent Notification dated 01.11.2023,
whereby the respondent No.5 was posted against the post of Inspector General of
Prisons and Correction Service, Sindh BS-21 in his Own Pay and Scale (OPS). His
main ground is that as per Section 15 (1) of the Sindh Prisons and Corrections
Services Act, 2019, (Act, 2019), the Appointing Authority to fill the post of IG
Prison, Sindh is the Government of Sindh i.e. (Cabinet), which comprises elected
Members of the Provincial Assembly, in terms of law laid down by the Supreme
Court in the case of Mustafa Impex, reported as PLD 2016 SC 808, as such the
Caretaker Chief Minister Sindh is not competent to appoint any official of Prison
department to the post of IG Prison Sindh, under the Elections Act, 2017. Per
learned counsel, the appointment on an acting charge basis can only be made on the
recommendation of the Provincial Selection Board (PSB) in terms of Rule 8-A (5)
of the APT Rules 1974. The learned counsel emphasized that respondent No.5 does
not fulfill the criteria to hold the subject post as he lacks the qualifications and
experience for the subject post; besides respondent No. 5 has not undergone the
mandatory National Management Course (NMC) as per Recruitment Rules dated
16.09.2022. Per learned counsel respondent No.5 is not a senior most officer of the
same cadre in BPS-20, as three other officers senior to him are available in the
same cadre, however, they have been bypassed by the respondent department with
mala fide intention to extend favour to respondent No.5. He prayed for setting aside
the impugned Notifications dated 13.10.2023 and 01.11.2023.
4. Mr. Muhammad Arshad Khan Tanoli, learned counsel representing respondent
No.5 has raised the question of the maintainability of this petition and argued that
the directions sought by the petitioner to the Provincial Government to relieve
respondent No.5 from the present place of posting where he has been transferred is
beyond the mandate of Quo Warranto and fall within the power of this Court to
issue a Writ of Mandamus and prohibition under Article 1991(a)(i) of the
Constitution, for which the petitioner is required to be an aggrieved person to seek
such order as there is a difference of locus standi between the Writ of Quo Warranto
and Mandamus. The learned counsel states at the bar that respondent No.5 has only
been assigned to look after the charge of the post of IG Prison, till the regular
appointment of IG Prison, with the approval of Caretaker Chief Minister Sindh;
that petitioner has failed to make out a case for any violation of enforcement of his
fundamental right to invoke the extraordinary Constitutional Jurisdiction of this
Court. Learned counsel referred to the administrative Note vide Summary for the

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Caretaker Chief Minister dated 29.09.2023, initiated through Caretaker Home

Minister Sindh for the posting of Inspector General of Prison (BPS-21) which had
fallen vacant due to the retirement of Syed Anwar Mustafa BPS-20 officer of the
prison department, since 27.09.2023. The learned counsel referred to Rule 2(xiii)
read with Rule 8 (iv) of the Sindh Government Rules of Business, 1986 and
submitted that the powers have rightly been exercised by the Competent Authority
to appoint respondent No.5 regularly, after getting necessary permission from the
Election Commission of Pakistan (ECP) in terms of provision of Elections Act,
2017. Learned counsel also referred to the Counter Affidavit filed by respondent
No. 5 to the main Petition and submitted that re-appointment to the post of IGP
Prison is beyond the scope of Writ of Quo Warranto in terms of law laid down in
the case of Muneer Rao v. Shamsuddin reported in 2004 PLC (C.S.) 1328. The
learned counsel referred to Rule 249 (3) of Sindh Prisons and Corrections Service
Rules, 2019 (Rules 2019) and argued that Rules 2019 have the overriding effect of
the Sindh Civil Servants Act, 1973 and Rules framed thereunder as such the issue
of posting of senior most officer of the same cadre in terms of Rule 8-A (5) of the
APT Rules 1974, is not called for at this stage, as the subject post is to be filled on
merits and not on seniority cum fitness basis. However, the respondent department
managed the Notification dated 16.09.2022 and parallel structure/rules were framed
in which certain conditions were prescribed for appointment to the post of IG
Prison, based on Seniority-cum fitness, which is not only a violation of Rule 9 (2)
of the Sindh Civil Servant Act, 1973 but the same is Ultra-vires to Section 15(1) of
Sindh Prisons and Service Corrections, 2019 and Rule 14(1) of Sindh Civil
Servants Promotion (BPS-19 to BPS-21) Rules 2022 (SCSP Rules 2022) whereby
post falling in BPS-19 to BPS-21 and above are declared to be Selection Posts and
criteria to fill the subject post in BPS-21 is based on merit, hence the Recruitment
Rules framed vide Notification dated 16.09.2022 is not only disregarding the
provision of Section 15 of the Ibid Act as well as Ultra-vires to Rule 14 of the
Rules 2022. The learned counsel submitted that respondent No.5 has the requisite
length of service and experience and he has participated in different training in the
Country and abroad and is a suitable and fit person to hold the subject post on
merit, as such the question of the posting the senior most officer on the subject post
is tint of the imagination of the petitioner. He prayed for the dismissal of this
petition.
5. Learned AAG has adopted the arguments of the learned counsel representing
respondent No.5 and referred to Rule 8-A of the Sindh Civil Servant (Appointment,
Promotion and Transfer Rules, 1974 and submitted that the competent authority can
appoint the officer to the subject post on an acting charge basis for six months and
there is likely hood that the permanent officer shall be appointed by way of
promotion in terms of Recruitment Rules as such there is no illegality in the
appointment of the respondent No.5 by way of transfer as IG Prison Sindh till
further orders.
6. At this stage, we confronted the learned counsel for the respondents with the
recent judgment rendered by the Supreme Court in the case of The Province of
Sindh through Chief Secretary and others v. Ghulam Shabbir and others 2023
SCMR 686 wherein it is held that to stretch or continue acting charge or ad-hoc
arrangement on OPS for an extensive period is highly destructive and deteriorative

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to the civil service structure. Besides making the appointments on acting charge
basis includes the consideration by the appointing authority in the public interest to
fill a post reserved under the 1974 APT Rules for departmental promotion and if the
most senior civil servant belonging to the cadre or service concerned, who is
otherwise eligible for promotion, does not possess the specified length of service,
the authority may appoint him to that post on acting charge basis. On the aforesaid
point learned AAG has submitted that some minor irregularities, if any, in the
appointment of respondent No.5 on the subject post were not sufficient for the
issuance of a Writ of Quo Warranto against respondent No.5. He prayed for the
dismissal of this petition.
7. We have heard the learned counsel for the parties and have perused the entire
material available on record and the case law cited at the bar.
8. The objection regarding the jurisdiction of this Court as raised is
misconceived and is hereby discarded, for the reason that the petitioner has mainly
challenged the appointment of respondent No.5 regarding his qualification to hold
the post, in violation of Recruitment Rules as discussed supra, and arbitrariness of
the respondent department in posting him as IG Prison Sindh in BS-21. Secondly,
so far as fitness to hold the Selection Post is concerned, the same can be filled on
merits and the officer fit in all respects can be appointed as IG Prison Sindh; and in
such circumstances, the Sindh Service Tribunal (SST) has no jurisdiction over the
question of determination of "fitness" of a Civil Servant, however, the question of
eligibility is different from the question of fitness which is not the case in hand. So
far as the Writ of Quo Warranto is concerned, it is established law 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 aggrieved. However, at
the same time, we are cognizant of the fact that there is much difference between
the Writ of Quo Warranto and Mandamus. Mandamus also differs from writs of
prohibition or certiorari in its demand for some activity on the part of the body or
person to whom it is addressed, for the performance of public duty and commands
the person to whom it is addressed to perform some public or quasi-public legal
duty, which he has refused to perform, and the performance of which cannot be
enforced by any other adequate legal remedy. In such a situation party should be an
aggrieved party having no other adequate and efficacious remedy. On the aforesaid
proposition, we are guided by the decision of the Supreme Court in the case of
Secretary Finance and others v. Ghulam Safdar (2005 SCMR 534).
9. Having dilated upon the maintainability of the Petition, and to appreciate
whether such a direction sought by the petitioner could be issued while exercising
powers of Writ of Quo Warranto or mandamus/prohibition, it would be important to
refer to Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The
perusal of Article 199(b)(ii) of the Constitution shows that a person performing
duties in connection with affairs of the Province could be required to show under
what authority he is holding a particular public office and for that purpose, the
petitioner therein may not be required to be an aggrieved person, however, in the
instant matter the directions sought by the petitioner were not merely confined to
the afore-referred aspect of the matter rather the same include the issuance of
directions like the Writ of Mandamus and prohibition against the respondent No.5

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requiring him to show his fitness to hold the promotion post in BS-21 without
fulfilling the criteria as outlined in the recruitment rules as the matter of
appointment of the post of Inspector General of Prison Sindh (BPS-21) is governed
under the Recruitment Rules notified vide Notification dated 16.09.2022, which
reads as under:-
GOVERNMENT OF SINDH
HOME DEPARTMENT
KARACHI, DATED the 16th September, 2022
NOTIFICATION
NO. HD/SO/PRS-d/ii-200/2021: In PRUSUANCE OF SUB-RULE (2) OF
RULE 3 OF THE Sindh Civil Servants (Appointment, Promotion and
Transfer ) Rules 1974 and in consultation with the Regulation Wing of
Services General Administration and Coordination Department, Government
of Sindh, the method, qualification, experience and other conditions for
appointment in respect of the post of Inspector General of Sindh Prison
(BPS-21) IN THE Sindh Prisons and Corrections Service, Home
Department, Government of Sindh, mentioned in columns-2 of the table
given below, shall be laid down as per columns 3, 4 and 5 thereof:-
Sr. NAME METHOD OF QUALIFICATION AGE
No. WITH POST APPOINTMENT AND EXPERIENCE LIMIT
WITH BPS Min-Max
1 Inspector By promotion from
General of amongst the DIG
Prison of Prisons (BPS-20)
Sindh (BPS- having at least
21) twenty-two years'
service in BPS-17
and above with
successful
completion of
mandatory training
viz. National
Management
Course (NMC) at
the National
Institute of
Management (NIM)
on seniority cum
fitness basis.
10. On examining the rules, it is found that the post of Inspector General of
Prison of Sindh (BPS-21) is 100% promotion post and can be filled by way of
promotion from amongst the DIG Prisons (BPS-20) having at least twenty-two
years of service in BPS-17 and above with successful completion of mandatory
training viz. National Management Course (NMC) at the National Institute of
Management (NIM) on seniority cum fitness basis.

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11. We have before us the seniority list wherein the name of respondent No.5 is
placed at Sr. No.4. It has also been informed that respondent No.5 lacks twenty-two
years of service in BPS-17 and above with successful completion of mandatory
training viz. National Management Course (NMC) at the National Institute of
Management (NIM) as prescribed under the rules. If this is the position of the case,
the grant of higher appointments to junior officers against senior posts amounts to
accelerated promotion, as has been done in the present case, as respondent No.5
without the recommendation of PSB, has been directly posted as IG Prison (BPS-
21), which is a promotion post.
12. In view of the above facts and circumstances of the case, we hold that the
respondent department is required to appoint a qualified person to the post of IG
Prison BPS-21 as per Recruitment Rules and not otherwise.
13. On the issue of OPS, the Supreme Court in the case of the Province of Sindh
and others v. Ghulam Fareed and others (2014 SCMR 1189) while dealing with
OPS posting not only discouraged such practice but also noted that only in
exigencies the Government makes such appointments as a stop-gap arrangement
whereas in the present case, recruitment rules are already in the field but the
respondent-department deemed it fit to post the respondent No.5 as IG Prison Sindh
on OPS which act on the part of respondents is against the law and dicta laid down
by the Supreme Court in the case of "Khan Muhammad v. Chief Secretary,
Government of Balochistan Quetta and others" (2018 SCMR 1411).
14. For what has been discussed above, the impugned notifications dated
13.10.2023 and 01.11.2023 are struck down; the petition asked for is accordingly
allowed with the direction to the competent authority to fill the post of Inspector
General of Prison of Sindh (BPS-21) under Recruitment Rules within one month
from the receipt of this judgment. In the intervening period, the respondent
department shall strictly follow Rule 8-A of the Sindh Civil Servant (Appointment,
Promotion and Transfer) Rules, 1974, while making the appointment of the senior
most officer of the same cadre, as stop-gape arrangement, on the subject post.
15. These are the reasons for our short order dated 19.02.2024, whereby we
allowed the petition, an excerpt, whereof is reproduced as under:-
"Arguments heard. For reasons to be recorded later and subject to what is set out
therein by way of amplification or otherwise, this petition is allowed and the
two impugned Notifications dated 13.10.2023 and 01.11.2023 are hereby set
aside."
SA/A-39/Sindh Petition allowed.

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