ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P No.D-1898 of 2012
Present
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Muhammad Iqbal Meher
Riaz Ahmed & others ……….. Petitioners
Versus
Province of Sindh & others …......... Respondents
Abdul Wajid Sheikh & others ……….. Applicants
Order on Application under Section 12 (2) C.P.C and Stay Application (M.A NO. 27933/2013 & 27934/2013).
Date of hearing 20.4.2016 & 25.04.2016
M/s. M.M. Aqil Awan and Danish Rasheed Advocates for the petitioners.
Dr. Shahnawaz Advocate for the Petitioner No.2.
M/s. Malik Naeem Iqbal, Faizan H. Memon and Muhammad Saleem Advocates for the Applicants.
Mr. Sibtain Mehmood A.A.G with Ms. Rakhshanda Waheed, State Counsel.
Muhammad Ali Mazhar--J. This petition was filed to seek the following relief(s).
“(a) To direct the official respondents to notify the draft rules of Sindh Civil Servants (Provincial Management Service) Rules, 2006, whereunder petitioners are made to require to obtain necessary training in the relevant fields so that they may not be discriminated with the Officers of Ex-PCS Cadre and further direct the respondents to implement the lawful order of competent authority viz. Chief Minister of Province of Sindh.
(b) To direct the official respondents to issue notification in the meanwhile relieving the petitioners for joining Sindh Civil Services Academy Karachi for pre-Service training, Karachi as it has been done in the case of Ex-PCS Cadre.
(c)………
(d)……...”
2. The brief facts of the main petition are that the petitioners belonged to the cadre of Provincial Secretariat Service, hereinafter referred as PSS. The SGA&CD is the Administrative Department of Ex-PCS and PSS cadres. The officers belonging to both of the cadres had common channel of promotion, however the Provincial Government had notified sharing formula for the officers of BPS-18 & BPS-19 vide Notification dated 23.01.2007 which holds the field. The Administrative Department of PSS cadre realized that the officers of PSS cadres should be afforded an opportunity to get training and the same should be channelized through statutory rules. The draft rules were prepared to achieve the said object under the nomenclature of Sindh Civil Servants (Provincial Management Service) Rules 2006. The law Department to Government of Sindh vetted the draft Rules and referred it back for further necessary action to the Regulation Wing of SGA &CD.
3. The respondents No.1 to 4 filed the comments to main Petition in which they admitted that petitioners belonged to PCS and with the approval of the Chief Minister Sindh the sharing formula for the Cadre posts of BPS-18 and 19 meant for officers of Ex-PCS and PSS was Notified on 23.1.2007. It was further admitted in the comments that draft Rules for creation of Provincial Management Service (PMS) by merging two provincial service groups of Ex-PCS and PSS were prepared and duly vetted by the law department under the nomenclature of Sindh Civil Servant (Provincial Management Service Rules 2006. A summary was also moved to the Chief Minister Sindh for formation of PMS but the same could not be formed due to disagreement on sharing formula relating to the posts of various cadres by the officers of Ex-PCS and PSS.
4. Since, the aforesaid draft rules were not notified, therefore the then officers of PSS Cadre submitted their representation in the year 2009 to the Chief Secretary. In continuation of the efforts, the Chief Secretary accorded the approval for submitting a summary to the Chief Minister Sindh for his approval. Despite representation and approval of the Chief Secretary, the rules were not notified, therefore the petitioners approached this Court for directions against the respondents to notify the draft rules. The petition was heard and disposed of by the learned divisional bench of this court comprising honorable Mr. Justice Faisal Arab and Mr. Justice Mohammad Shafi Siddiqui in the following terms.
“5. No doubt a sharing formula has been prescribed for the Cadre post of BPS-18 and 19 meant for officers of Ex-PCS and PSS vide notification dated 23.01.2007. It is also a fact that Ex-PCS officers are getting the training to compete in the promotion process for BPS-18 and 19 whereas there is no such criteria for PSS cadre officers to be selected for training to compete for their promotion to BPS-18 and 19 and in the absence of such notified rules/statutory rules the selection of such officers is currently based on the personal desire and whims of the concerned executive of SGA&CD who are responsible for choosing such officers from PSS Cadre and hence there is no transparent or statutory method which could streamline the promotion process of PSS cadre. We have also perused the comments filed on behalf of respondents and no justification was given by the learned AAG for withholding such rules to be notified. Such rules if notified would certainly cater for good governance as it has already been established in other provinces and all required formalities have been completed. The subject draft rules are prepared in terms of section 26 of Sindh Civil Servants Act, 1973 and even otherwise, it is well within the domain of the authority concerned to amend and streamline the subject rules, if at all required. There seems to be no justification for withholding the notification of the subject rules and on the contrary the absence of such notified rules would create a sense of insecurity amongst the PSS cadre who at present do not have a policy or mechanism whereby they could be selected for the training which could enable them to compete for their promotion”.
5. On 26.10.2013, twenty seven applicants filed application under Section 12 (2) CPC r/w Section 151 CPC in which they pleaded that the judgment has been procured through misrepresentation of facts therefore it is liable to be set-aside along with this application, they had also moved an application under Order-39 Rule 1 and 2 C.P.C for the suspension of the operation of the judgment dated 18.10.2013. On 04.11.2013 both the applications were fixed in the court on urgent motion before the same bench which passed the following order:-
“1. Granted.
2 & 3. Notice to petitioners, In the meantime the operation of the judgment under challenge under Section 12 (2) C.P.C is suspended till the next date of hearing. To come upon 2.12.2013”.
However, when this case was fixed on 16.1.2015 before the learned divisional bench headed by the honorable Mr. Justice Faisal Arab, the learned bench was pleased to pass following order.
“This is a disposed of petition. Let this petition be fixed before the Service Bench for hearing of application on 27.1.2015.”
Due to aforesaid directions, the office had fixed this matter before the regular service bench.
6. The learned counsel for the applicants in support of application moved under Section 12 (2) C.P.C argued that all the applicants belonged to Executive Provincial Services Commission (Ex-PCS) cadre and appointed after passing competitive examination by the Sindh Provincial Service Commission. The applicants are governed under the West Pakistan Civil Services (Executive Branch) Rules 1967 in which Rule 8(4) provides that no person shall be confirmed in the service unless he successfully completes such training and passes departmental examination as may be prescribed by the government from time to time. It was further contended that the petitioners of the main petition belong to PSS which is a distinct service from Ex-PCS as contemplated under the Civil Service of Pakistan Composition of Cadre Rules 1954. It was further argued that the petitioners have procured the judgment through misrepresentation and misled the court for the simple reasons that the draft rules were never placed before Chief Minister of the Province of Sindh for due approval. The petitioners obtained the judgment behind the back of the applicants and they were deliberately not impleaded as respondents. The Ex-PCS Service has been framed under the law and it could not be replaced by the Provincial Management Service through Administrative notification. The petitioners have attempted to demolish the legal order of service which is totally contrary to law and constitution.
7. The learned counsel for the petitioners argued that the petitioners made representation to the Chief Secretary and on their representation, draft rules were prepared by the Administrative Department and approved by SGA&CD. The petitioners came to this court in the main petition with the prayer to issue directions to the official respondents to notify the draft rules. It was further contended that the draft rules were also admitted in the comments filed by the respondents to the main petition. Under Section 12(2) CPC, the challenge to validity of any judgment or decree is confined to the plea of fraud, misrepresentation or want of jurisdiction. The applicants have failed to disclose in their application and or the supporting affidavit any element of fraud, misrepresentation or want of jurisdiction. They were not party to the petition but after passing this judgment they have approached this court prematurely as unless the draft rules are notified, they have no lawful cause or justification to approach this court through the application moved under Section 12(2) C.P.C. If the rules are notified, the government has powers under Section 26 of Sindh Civil Services Act, 1973 to amend very and resend the same either suo-moto or representation of affected parties. It was further averred that the petitioners have various remedies after notifying the rules and if they are found aggrieved, representation can be made to the competent authority for varying or resending the same and if they are found aggrieved against any part or portion of the rules effecting adversely the terms and condition, they may challenge the same in the Services Tribunal after complying with procedural requirements. In support of his arguments, he referred to PLD 2002 Supreme Court 500 (Dadabhoy Cement Industries Ltd and others vs. National Development Finance Corporation Karachi), 2009 SCMR 40 (Mst. Shabana Irfan vs. Muhammad Shafi Khan and others) and 2003 SCMR 1050 (Mst.Nasira Khatoon vs Mst.Aisha Bai and others).
8. The learned A.A.G argued that while disposing of the main petition by this court, the comments of the respondents were not considered properly. He further argued that merger of two cadres is not legally permissible. However he admitted that despite lapse of considerable time neither Government filed any appeal against the judgment nor filed any application for review.
9. Heard the arguments. It is a matter of record that the petition was disposed of vide order dated 13.8.2013 with the observation that there seems to be no justification for withholding the notification of the subject rules and on the contrary the absence of such notified rules would create essence of insecurity amongst PSS cadre and at present do not have a policy or mechanism whereby they could be selected for the training which could enable them to compete for their promotions. It is also a matter of record that on 04.11.2013, the same bench which seized and disposed of the petition suspended the operation of the judgment on filing this application under Section 12 (2) C.P.C. Since then the matter is pending for one or other reasons. The applicants being found aggrieved against the judgment could have filed appeal in the apex court, but they preferred to file application under Section 12 (2) C.P.C on the premise that the judgment was obtained on misrepresentation. It is also a fact that due to suspension of the operation of the judgment the draft rules have not been notified, but the applicants have approached this court without waiting the Notification and or availing remedy to challenge the said rules separately or independently through distinct proceedings. The matter before us in this application have a very limited scope and compass that is confined to take hold of the grounds on the basis of which a person can challenge the validity of judgment and decree or an order so before embarking upon this exercise we have to first sought out as to what case of fraud, misrepresentation or want of jurisdiction is made out. In the application and or the supporting affidavit no particular instance or the ground has been demonstrated which may suffice to hold any plea of fraud, misrepresentation or want of jurisdiction. If the applicants were not made party in the main proceedings, it does not lead to any adverse inference that judgment has been obtained by fraud or misrepresentation. In the case of Mst.Shabana Irfan (supra), the apex court held that petition under Section 12(2) CPC may be decided summarily by the court which had passed final judgment, decree or order in dispute when there are admitted facts and documents between the parties. No need to prolong the litigation, when the case ex-facie appeared to have not been filed in a wrong jurisdiction and when fraud or misrepresentation was not involved in the case or in the transaction. In the case of Nasira Khatoon (supra), the apex court held that the remedy of civil suit available for setting aside the judgment and decree obtained by fraud and misrepresentation prior to the enactment of subsection (2) of section 12, C.P.C. was taken away by this subsection but this remedy would not be available like a regular suit and the court may dispose of an application under section 12(2), C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit. It was further held by the apex court in the aforesaid pronouncement that without bringing the essential facts on the record and the evidence in prove of fraud, the plea of ignorance and lake of knowledge simplicitor would not be sufficient to constitute fraud and dislodge the sanctity attached with the acts and judicial proceedings. In the case of Dadabhoy Cement Industries Ltd. (supra), the apex court held that mere allegation of fraud, misrepresentation and coercion not supported by any material would not invariably want inquiry or investigation in each case, where allegation of fraud is leveled the same must be specified and details thereof should be given. The trial court is not bound to frame issues in each and every case, but it depends upon the facts and circumstances of each case. Where court finds that further inquiry is required, it would frame issues and record evidence of the parties, but if it is of the opinion that no inquiry is required, then it can dispense with the same and proceed to decide the application. In the instant case, the applicants have failed to demonstrate any case of fraud or misrepresentation.
10. As a result of above discussion, the listed applications are dismissed and interim orders are vacated. However, it is significant and noteworthy to have a fleeting look to paragraph No.8 of the counter affidavit filed to the main petition by the respondent No.1 to 4 wherein they have admitted the draft rules for creation of PMS by merging two Provincial Services Groups but the same could not be notified due to disagreement over sharing formula relating to the post of various grade by the Ex-PCS and PSS. Though the judgment contained the directions to issue a Notification of the subject Rules but at the same time the court remarked that “The subject draft rules are prepared in terms of section 26 of the Civil Servant Act, 1973, and even otherwise it is well within the domain of the authority concern to amend and streamline the subject rules, if at all required”. This finding leads us to the conclusion that in order to deal with the disagreement over sharing formula and for other related issues, a venue was left upon for the Government in the main judgment to amend and streamline the subject Rules, therefore, the applicants may file representation to the concerned authority or in alternate they may wait till such time the Rules are Notified so that they may challenge the vires of Rules if any through proper legal proceedings.
Karachi:-
Dated.21.6.2016 Judge
Judge