IN THE SUPREME COURT OF PAKISTAN

( Appellate Jurisdiction )

PRESENT:
MR. JUSTICE NASIR-UL-MULK, HCJ.
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE IJAZ AHMED CHAUDHRY

CIVIL APPEAL NO.404/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Ali Hassan Brohi Vs. Province of Sindh thr. Chief
Secy. and others

CIVIL APPEAL NO.405/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Ali Azhar Baloch Vs. Province of Sindh and others

CIVIL APPEAL NO.407/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Abdul Ghani Jukhio Vs. Province of Sindh, thr. Chief
Secy. and others

CIVIL APPEAL NO.409/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Syed Abid Ali Shah Vs. Province of Sindh, thr. Chief
Secy. and others.

CIVIL APPEAL NO.411/2011 AND CMA. NO.4339/2013

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)

Dr. Aftab Ahmed Mallah Vs. Dr. Nasimul Ghani Sahito etc

CIVIL APPEAL NO.412/2011 AND CMA. NO.4340/2013

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Dr. Muhammad Ali Vs. Dr. Nasimul Ghani Sahito etc

CIVIL APPEAL NO.413/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Ahmed Hussain Vs. Dr. Nasimul Ghani Sahito etc

CIVIL APPEAL NO.495/2011

(On appeal against the judgment dated 2.4.2011 passed by the High
Court of Sindh, Karachi in CP.D-932/2009)
Rasool Bux Phulphoto Vs. Province of Sindh thr. Chiefr
Secy. and others
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ATTENDANCE

For the Appellant(s)

(in CA.404 & 405/11) : Syed Iftikhar Hussain Gillani, Sr. ASC
(in CA.407/11) : Mr. Adnan Iqbal Ch, ASC
(in CA.409/11) : Mr. Asim Mansoor Khan, ASC
(in CA.411 & 412/11) : Mr. Hamid Khan, Sr. ASC
(in CA.413/11) : Mr. Abdul Rahim Bhatti, ASC
(in CA.495/11) : Miangul Hassan Aurangzeb, ASC

For Respondent(s)

For Govt. of Sindh. : Sarwar Khan Add. A.G Sindh

Abdul Fateh Malik A.G. Sindh
Rafique Mustafa Shaikh,
Add. Secretary Services(S&GAD)
Ghulam Ali Bharmani,
Dy. Secretary Services(S&GAD)

CAs. 404, 405, 407, 409 & : Ch. Afrasiab Khan ASC
411 TO 413/2011
3-13,15,16,18-25,27-41,43-49,
51 & 52:
CA.495/2011
3-12,14,15,17-24,26-31,33-
40,42-48, 50,51

Date of hearings : 5th, 6th, 10th June, 2014,

15th to 17th & 21st to 24th October, 2014.

JUDGMENT
AMIR HANI MUSLIM, J.-

C.A. No.413 of 2011

Ahmed Hussain vs. Dr. Naseem ul Ghani Sahito
by Mr. Adbul Rahim Bhatti, ASC

1. Mr. Abdul Rahim Bhatti, learned ASC submitted that

on 24.10.1994, the Appellant was appointed as Protocol Officer in

BS-17 in CM Secretariat. The post of Protocol Officer falls outside

the purview of the Public Service Commission and in 2007 the post

was upgraded to BS-18. Thereafter, on 03.01.2009 he was

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absorbed as Deputy Secretary in Provincial Secretariat Service

(PSS) with backdated seniority.

2. The learned Counsel for the Appellant contended that

the writ filed by the Respondent was not in the nature of quo-

warranto. According to him, a writ of quo-warranto could not be

filed on opaque technicalities. He next contented was that the

subject matter of the writ relates to the terms and contention of

service, therefore, a writ in the nature of quo-warranto did not lie.

In support of his contention, he has relied upon the case of Khalid

Mahmud Advocate v. Muhammad Yaseen (1991 SCMR 1041). The

learned counsel has contended that the view in the case of Khalid

Mahmud (supra) has consistently been followed by this Court. He

submitted that if a Civil Servant is aggrieved by an order of the

Departmental Authority, he is required to file an Appeal before the

Service Tribunal. According to him, the jurisdiction of the Service

Tribunal cannot be bypassed by the Respondents claiming relief

from the High Court under the garb of fundamental rights. He

relied upon the case of Khalid Mahmood Wattoo v. Government of

Punjab (1998 SCMR 2280) by submitting that a distinction has

been drawn by this Court between the exercise of jurisdiction of

the High Court under Article 199 of the Constitution and the bar

placed on such an exercise by Article 212 of the Constitution. He

contended that the Respondent could not have filed a Petition,

which pertains to the term and condition of their service before the

High Court. The learned Counsel has relied upon the case of

Muhammad Liaquat Munir Rao vs Shams ud Din and others (2004

PLC (CS) 1328) and contended that a writ in the nature of quo-

warranto could only be filed before the Tribunal and contended

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that the issue pertaining to the terms and conditions could not be

gone into by the High Court for want of jurisdiction, which falls

within the purview of the Services Tribunal. He also cited case Dr.

Azim-ur-Rehman Khan Meo vs Government of Sindh (2004 PLC (CS)

1142) in support of his contention.

3. The learned Counsel submitted that the judgment

under review, should apply prospectively. He further contended

that the judgment is discriminatory, as in some cases, the question

of absorption has been saved by the High Court of Sindh under

Rule 9-A. The learned Counsel submitted that the Petitioner was

appointed under Rule 9(1) as he satisfied all the requirements of

qualification, experience and Grade.

4. According to the learned Counsel, the appointment of

the Appellant was made by the Competent Authority on following

the codal formalities. He submitted that the Appellant could not

be penalized for the act of the Government functionaries. He

submitted that those officers, who have appointed the Appellant in

violation of the rules may be proceeded against. Counsel relied

upon the cases (1996 SCMR 1350), Iqbal Hussain Sheikh and 2

others v. Chairman FBR (2013 SCMR 281), Fahd Asadullah Khan v.

Federation of Pakistan (2009 SCMR 412) and (2006 SCMR 678) to

establish that if an order is passed by an authority erroneously or

in violation of rules, it should firstly be determined which authority

is responsible for the order. The learned Counsel has relied upon

the case of Dr. Nighat Bibi vs Secretary, Ministry of Health (2009

SCMR 775) in support of his contention, wherein absorption was

saved. He cited the case of Najam Abbas vs Superintendent of

 5

Police (2006 SCMR 496) in support of his contention that no officer

should be penalized for the act of functionaries.

C.A. No.404, 405 of 2011

Ali Hassan Brohi (CA404/2011)

Ali Azhar Baloch (CA.405/2011) v. Province of Sindh etc
by Syed Iftikhar Hussain Gillani, Sr.ASC

5. The learned Counsel contended that he is in complete

agreement with the judgment striking down the legislative

instruments, however, the Sindh Government has misled this

Court, and the Court believed the submissions made and passed

the order. The Counsel submitted that this petition challenges para

No.175 of the judgment under review.

6. The learned Counsel contended that on 19.09.1989,

the Appellant Ali Hassan Brohi was appointed in BS-18 as Director

in Ministry of Sports and Tourism, Government of Pakistan. After 5

years, on 02.03.1994, the Government of Sindh requisitioned his

services on deputation in BS-18. On 07.11.1995, he was absorbed

as Deputy Secretary in Provincial Secretariat Service (PSS).

7. The learned Counsel contended that the issue before

the Court relates to the legality of initial absorption of the

Appellant. He submitted that this Court assumed jurisdiction in

the matter under Article 184(3) of the Constitution, to examine the

vires of the legislative instruments, therefore, this Court could not

strike down the provisions which were not challenged before it. He

further contended that the judgment should be applied

prospectively.

8. The learned Counsel submitted that the instruments

struck down were enacted to protect absorptions, however, the job

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of the Court is to strike down the instruments and not to deal with

the cases of absorptions that have already taken place. He next

contended that the date of 1994 was not in the mind of the author

judge and there is no proof as to how the AG Sindh arrived at this

cut off date. Counsel submitted that the constitutional duty of this

Court ends the moment the law is struck down and what happens

afterwards would not be the concern of this Court. The Counsel

placed reliance on the case of (PLD 2013 SC 829) in support of his

contention that the judgment has to be prospective.

9. The learned Counsel next referred to the Sindh Civil

Servants (Regularization of Absorption) Act, Act 17 of 2011, and

submitted that the cut off date of 1994 is arbitrary, based on the

statement made by the learned AG Sindh. All illegal absorptions

should be declared invalid, and not only those made post-1994.

The Counsel contended that the Provincial Government has misled

the Court and out of 1161 employees who were absorbed, in the

similar manner, the action has only been taken against 278

Officers.

C.A. No.495 of 2013

Rasool Baksh Phulpoto v. Province of Sindh

by Mr. Miangul Hassan Aurangzeb, ASC

10. The Counsel submitted that the Appellant has retired

five months ago but his pension has been stopped. He contended

that when the judgment under review was pronounced, the

Appellant was MD of Pakistan Housing Authority and had been

appointed in the Federal Government on deputation.

11. The Counsel contended that, in 1973, he was

appointed as a teacher in the Directorate of Technical Education,

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Government of Sindh in BS-16. In May 1988, he was transferred

and posted as Additional Private Secretary to CM Sindh in BS-16.

He next contended that on 26.06.1988, the Federal Government

requisitioned his services and he was sent on deputation as PS to

Federal Minister Housing. The Appellant applied for the position of

Deputy Director, Directorate of Special Education, a fresh

appointment on ad hoc basis in BS-18. Then, in 1990, he was

selected as Additional DG, Peoples Works Program and was

transferred to the Local Government in the same grade. The

Counsel contended that the department was devolved to the

provinces, thus he became surplus. Thereafter, the CM Sindh

wrote a letter to the Establishment Division stating that the

Appellant has been absorbed w.e.f 25.05.1991 in the Sindh

Government. The Counsel submitted that the Appellant was duly

regularized in Provincial Government but has been reverted to the

Federal Government under the impugned judgment and is not

receiving any pension.

C.A. No.407 of 2011

Abdul Ghani Jukhio v. Province of Sindh

by Mr. Adnan Iqbal Ch., ASC

12. The learned Counsel submitted that on 22.11.1989,

the Appellant was appointed as PRO in Directorate of Sindh Kachi

Abadi Authority (SKAA) in BS-16. In 1995, he was appointed PRO

to Minister Population Welfare in SKAA and the post was upgraded

to BS-17 in May 1994. On 18.02.1996, he was appointed PS to

Minister for Excise on deputation. He subsequently came back to

his parent department from 1997 to 1999 as PRO. On 01.09.1997,

he was promoted to BS-18 and was then appointed as Deputy

 8

Director Coordination in SKAA. On 16.12.2002, he was appointed

Town Municipal Officer in S&GAD and was reverted to his parent

department in 2003 as Deputy Director Administration. Thereafter,

in 2004, he was appointed Director, Field Office of SKAA in BS-19.

On 31.01.2007, the Appellant was promoted to BS-19 and on

30.04.2007, he was appointed EDO Jamshoro in Ex PCS cadre.

The Counsel contended that on 18.11.2008, the Appellant was

absorbed as Additional Secretary in Provincial Secretariat Service

(PSS) in BS-19 and his name was placed at the bottom of the

seniority list. On 07.03.2011, he was appointed Secretary Mines

and Minerals in BS-20.

13. The Counsel submitted that the Appellant is not

posted anywhere and his lien with the SKAA has been terminated.

He contended that the Appellant is not a beneficiary of any

legislative instruments which protect absorptions. These statutes

were limited to protect the officers who were on deputation and

were subsequently absorbed under the statutes and the

Appellant‟s absorption does not fall under it.

14. The learned Counsel submitted that absorption of the

Petitioner is valid not only under Rule 9-A but under Rule 9(1) as

well and the appointment procedure provided in these Rules was

duly followed. He contended that the Appellant was a Civil Servant

since his first appointment and service Rules of SKAA were not

framed at that time. He contended that there are two parallel

structures: one is the Civil Services and the other posts in

connection with affairs of the Province. He contended that he

Sindh Kachi Abadi Act was meant for both these servants and if

those in Civil Services are allowed to move laterally to Government

 9

departments, those holding posts in relation to affairs of the

province should also be allowed to do the same.

15. He next contended that section 26 of the Composition

and Cadre Rules of 1954 allows for appointment by transfer of

private persons as well. He further contended that Section 7(2)(a)

of Public Service Commission Act, 1989, envisages movement from

Government Service to Civil Service and he relied on Hadi Buksh v.

Sindh (1994 PLC (CS) 924) to submit that such movement has

been endorsed by this Court. He lastly contended that in Nemat

Ullah Butt v. Government of Punjab (1988 SCMR 1453), this Court

held that there is nothing in the Act that prevents Government

from creating additional, separate cadres for Government servants

after absorption.

C.A. No.409 of 2011

Syed Abid Ali Shah vs. Province of Sindh

by Mr. Asim Mansoor Khan, ASC

16. The Counsel submitted that in 1976, the Appellant

was appointed as Management Trainee in the Board of

Management, Sindh for nationalized Ghee Industries. On

16.8.1997, he was appointed as Managing Director at Maqbool Co.

Ltd. when the Sindh Government requisitioned his services. On

24.10.1997, the Appellant was sent on deputation for 3 years to

the Ministry of Industries and Production. On 15.11.1997, he was

appointed Cane Commissioner in BS-19. Then on 05.04.1998, he

was transferred as DG, Bureau of Supply and Prices, Sindh.

Subsequently, on 15.11.1998, he was repatriated to Ghee Corp.

and on 14.01.1999, his services were placed at the disposal of

Population Welfare department (PWD). On 18.01.1999, he was

 10

appointed as Additional Secretary, PWD and on 09.08.1999, he

was absorbed in PWD in relaxation of rules. Then, on 30.09.1999,

Ghee Corp. relieved him but, on 18.12.1999, the Government sent

a notification for repatriation of the Appellant. However, on

21.12.1999, the Secretary, Sindh Government, submitted that the

Appellant has been absorbed therefore he cannot be repatriated.

17. The Counsel submitted that under an amendment to

section 8 of the governing statute, the employees of PWD were

declared Civil Servants. At the time of the judgment, the Appellant

was appointed Secretary Livestock in BS-20. Counsel contended

that he was de-notified on 02.07.2013 and repatriated to Ghee

Corp. even though he had been merged in the Government of

Sindh in PSS and Ghee Corp. was declared defunct. The Appellant

retired one year after de-notification on 01.06.2014.

C.A. No.411 of 2011

Dr. Aftab Ahmad Malah v. Dr. Naseem ul Ghani

by Mr. Hamid Khan, Sr. ASC

18. The learned Counsel contended that in the year 2000,

the Appellant Dr. Aftab was appointed Dental surgeon in BS-17 in

the Ministry of Health. On 05.09.2008, he was promoted as Senior

Dental Surgeon in BS-18 on the recommendations of committee

and with approval of the competent authority. On 07.10.2008, he

was transferred and posted as Deputy Secretary in BS-18 in the

Health Department, Government of Sind. Subsequently, on

18.11.2008, he was absorbed and inducted in PSS cadre in the

same grade and his name was placed at the bottom of the seniority

list.
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19. The Counsel contended that competitive examination

is not the only channel available for induction of officers, citing

Rule 9(1) as an example.

C.A. No.412 of 2011

Dr. Muhammad Ali v. Dr. Naseem ul Ghani

by Mr. Hamid Khan, Sr. ASC

20. The Counsel contended that the Appellant holds a

degree of MSc Economics from Bradford University and in Sept.

2003, he received a Doctorate in Business Administration from

Florida. He attended National Management Course from NIPA,

Lahore and courses at Royal Institute of Public Administration,

London.

21. The Counsel contended that on 18.06.1981, the

Appellant was appointed as Staff Officer in BS-17 in Agriculture

Development Bank of Pakistan (ADBP) and was prompted as

Assistant Director ADBP in BS-18. In 1993, he was promoted as

Joint Director in BS-19 and in 2001, the post was upgraded to

Director. In 2002, Governor of Sindh recommended the Appellant

for absorption in the Provincial Government as Secretary Food and

Cooperatives. On 12.07.2004, he was posted as Additional

Secretary in BS-19 in CM Secretariat on deputation. On

18.02.2005, he was appointed as Special Secretary (BS-20)

Implementation in CM Secretariat, w.e.f 17.7.2004 and on

14.03.2006, he was absorbed in PSS. The Counsel contended that

at the time of the judgment, the Appellant was on deputation to

the Federal Government as Joint Secretary, Drug Regulatory

Authority in BS-21. On 20.03.2013, he was promoted to BS-21 on

the recommendations of the Provincial Selection Board. The

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learned Counsel contended that on 21.12.2006, he was relived by

ADBP due to his absorption in the Provincial Secretariat.

22. The learned Counsel submitted that the subject matter

of the writ petition pertains to the terms and conditions of service,

therefore, the jurisdiction of the High Court is barred under Article

212 of Constitution, read with section 4 of Sindh Service Tribunal

Act. By filing a writ of quo-warranto, a question relating to terms

and conditions of service can only be determined by the Tribunal.

23. The learned Counsel submitted that the Learned

Judges of High Court of Sindh ignored Rule 9(1). He contended

that the appointment of Dr. Aftab Malah was validly made under

Rule 9(1) and that of Dr. Muhammad Ali was also validly made

under section 24, as their services were requisitioned with the

approval of the competent authority. Counsel submitted that

appointment of Dr. Aftab Malah satisfied all three conditions laid

down under Rule 9(1) and that Rule 6A relates to promotion and

not appointment by transfer. Counsel submitted that lateral

movement is permitted but it is governed by certain rules, which

have been followed.

24. The learned Counsel contended that their remedy lies

before the Service Tribunal, and not before the High Court; and

this judgment goes beyond the jurisdiction of the High Court.

While placing reliance on Superintendent Engineer Highways v.

Muhammad Khurshid (2003 SCMR 1241), Counsel submitted that

exclusive jurisdiction pertaining to terms and conditions of service

lies with the Tribunal. He next contended that in Managing

 13

Director v. Ghulam Abbas (2003 PLC (CS) 796), it was held that

Service Tribunal could hear matters of absorption.

25. The Counsel contended that a writ of quo warranto is

not available to one set of Civil Servants against another set of Civil

Servants. He submitted that if a colleague is allowed to challenge

another colleague‟s appointment, there would be no end to this;

there will be anarchy in the Civil Service structure. He placed

reliance on Dr. Azeem ur Rehman v. Government of Sindh (2004

SCMR 1299) and contended that if an appointment has been made

and there is something wrong with such appointment, the Tribunal

is the appropriate forum to challenge it.

26. The learned Counsel submitted that when they filed a

writ of quo warranto, the Petitioners were bound to show as to how

they were aggrieved, which they have failed to do. The learned

Counsel contended that these writ petitions were hit by the

principle of laches. Dr. Aftaf Malah was transferred in 2008 and

Dr. M. Ali was appointed in 2006, while these petitions were filed

in May 2009. He placed reliance on the case reported as (2012

SCMR 280).

27. The learned Counsel referred to section 24 of the Civil

Servants Act. The Counsel contended that the Appellant was highly

qualified and talented and there is always an exception available in

the Rules. The Counsel next contended that the principle of locus

poententiae is attracted as the appointment was validly made, he

was qualified and the appointment had taken effect, and he placed

reliance on Sarosh Haidar v. Muhammad Javaid (PLD 2014 SC

338). He further relied on the case reported as (PLD 1969 SC 407)

 14

where it was held that the matter relating to salaries was against

law but since it had taken effect, it could not be taken back.

28. The learned Counsel submitted that the High Court

could not consider Rule 9(1) since appointment could also be made

under it. The learned Counsel relied on Raunaq Ali’s case (PLD

1973 SC 236) in which a distinction was made between acts done

without jurisdiction and those done improperly or with some

irregularity. The Counsel contended that appointments have been

made and have taken effect. In such instances, jurisdiction should

be exercised very carefully. He also relied on Muhammad Hussain

Munir v. Sikandar (PLD 1974 SC 139). The Counsel lastly

submitted that legal principles laid down by this Court must

operate prospectively and he placed reliance on (2009 SCMR

1169).

29. The learned Counsel, Ch. Afrasiab Khan, contended

that the cutoff date of 1994 was not determined in vacuum and

was based on data. The notification, dated 02.11.1994, at para. 6

of the Sindh High Court judgment, stated that 10% of

appointments shall be made by transfer from other departments.

This is why the learned AG Sindh submitted the date of 1994.

Furthermore, the appointments placed on record before the Court

were those made in 1994 and onwards, that is why the judgment

relates to the appointments made after 1994.

30. The Counsel next contended that the judgment should

operate retrospectively as there are at least four conclusive

judgments of this Court in support of this point, including

Dr. Mobashir Hassan’s case. (supra).

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31. The Counsel lastly contended that the nomenclature of

the legislative instruments which were challenged manifestly admit

in their content that all absorptions were illegal, that is why it was

called “Regularization of Absorption”. Regularization is only done of

that which is wrong, illegal and void.

32. Mr. Sarwar Khan, learned Addl. Advocate General

while referring to para. 2 of the judgment of the High Court, has

contended that there was no absorption in PSS group prior to

1994. He next submitted that his contentions are the same which

were made before the High Court, and are given in para. 25 of the

judgment.

33. We have heard the learned Counsel for the Appellants

and have perused the record. The Appellants were absorbed on

different dates in Sindh Government. During the pendency of the

Appeals, the issue of absorption in service, post and cadre was

agitated in Constitution Petition No.71 of 2011 and other Petitions,

which were heard and decided by the judgment dated 12.6.2013,

whereby the „absorption‟ has been declared unconstitutional,

therefore, these Appeals will have no bearing which have been

preferred against the judgment of the High Court of Sindh dated

2.4.2011 in CP.D-932/2009 (Dr. Nasimul Ghani Sahito vs. Province

of Sindh etc) in which the learned High Court while examining the

scope of Section 24 of the Act has held that the authority was not

authorized, in law, to absorb the Appellants in different cadres,

service or posts. Since we have already decided the issues raised in

these Appeals in the aforesaid judgment, review of which has also

been dismissed, holding that absorption can neither be ordered

under Section 24 of the Sindh Civil Servants Act 1973, nor under
 16

Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and

Transfer) Rules, 1974, and is violative of the fundamental rights of

the Civil Servants, consequently, these Appeals have lost their

significance and are accordingly dismissed.

Approved for reporting

Sohail/Saeed/**

Announced in open Court on 05.01.2015 at Karachi.