ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P.NO.D-3913 OF 2015

Present

Mr. Justice Muhammad Ali Mazhar

Mr. Justice Muhammad Iqbal Kalhoro

Zubair Vs. Federation of Pakistan

& others

Dates of hearing: 10.8.2015 and 05.10.2015

M/s.Kafeel Ahmed Abbassi and Malik Naeem Iqbal, Advocates for the Petitioner.

Mr.Salman Talibuddin, Additional Attorney General for Pakistan.

Munir Anwer Baig, Assistant Director, Department of Plant Protection.

……………………..

Muhammad Ali Mazhar J. This petition for quo warranto has been brought to challenge the assignment of additional charge to the respondent No.3 as Director General, Department of Plant Protection, Ministry of National Food Security and Research, Government of Pakistan, Islamabad initially for a period of three months vide office order dated 14.2.2014, which was further extended vide notifications dated 15.10.2014 and 17.3.2015 with retrospective effect. The learned counsel for the parties agreed that this petition may be heard and decided at Katcha Peshi stage and they extensively argued the matter.

2. The learned counsel for the petitioner argued that the Department of Plant Protection is an attached Department of Ministry of National Food Security and Research which is destined to help and increase per hector yield by protecting crops from damage of insects, disease and weeds. The Adviser and Director General (BS-20) is responsible to run the affairs of Department of Plant Protection assisted by a range of Deputy Directors in technical and non-technical cadre. The post of Director General BS-20 is required to be filled by promotion or by direct appointment of a person having master degree in agriculture science. The Adviser and Director General is organizational head and all officers report to him in discharge of their duties. More than a decade the respondent No.1 and 2 have failed to fulfill their obligations to appoint a regular Director General, Department of Plant Protection. The incumbent is an officer of Pakistan Agriculture Research Council, which is an autonomous organization altogether separate and distinct from the Department of Plant Protection. On account of political interference and nepotism, the post of Director General, Department of Plant Protection remained occupied by the outsiders by way of deputation and or additional/acting charge in violation of law and relevant Rules. Since September, 2013 the respondent No.3 is holding additional charge continuously on the basis of extensions from time to time without any lawful justification and authority. It was further contended that the respondent No.3 is non-cadre officer of an autonomous body who is holding the post of regular cadre in sheer defiance of the order of hon’ble Supreme Court. The respondent Nos.1 and 2 are bound to make appointment in accordance with the relevant rules but they are giving extensions to benefit and favour the respondent No.3. In support of his contention, the learned counsel for the petitioner referred to the case of Safdar Ali Sehito vs. Province of Sindh & others reported in 2011 PLC (C.S) 956 and 2013 SCMR 1752 (contempt proceedings against the Chief Secretary, Government of Sindh & others).

3. The learned Additional Attorney General argued that on repatriation of predecessor of respondent No.3, none of the officers of Department of Plant Protection had the required experience and qualification, therefore, the respondent No.3 who was performing his duties in Pakistan Agriculture Research Council, which is under the administrative control of the respondent No.2 has been entrusted an additional charge by the competent authority, who has meritorious record and as a research scientist, he played vital role in development of accredited laboratories, formulation of food safety guidelines, regulation of import and exports and development of policies and for grain protection etc. During his tenure the exports of fruits and vegetables has been increased manifold. The responsibility of the Department of Plant Protection is to ensure that country’s exports to international market are promoted. The average Pakistan’s export rejections in the previous years were more than 250, therefore, it was imperative to overhaul the machinery of Department of Plant Protection and since no suitable person was available in the department to supervise the work, the charge of the department has been entrusted to the respondent No.3 but due to non-availability of a suitable replacement, the charge continued in the public interest. He argued that the petition is motivated by malice and instituted under the influence of group of persons who are annoyed due to honesty of incumbent. The petitioner has no locus standi to file this petition. The Ministry was competent to assign the additional charge due to non-availability of a suitable person and this transitional arrangement would come to an end with the appointment of full time Director General. The post was advertised but the Federal Public Service Commission did not make any recommendation for appointment as not a single person was found eligible for this post, therefore, the process of direct recruitment is again underway.

4. This matter was heard and reserved for judgment on 10.8.2015, but learned Additional Attorney General for Pakistan moved an urgent application (CMA No.22744/2015) and intimated a new development that now the respondent No.3 has been assigned the charge on deputation vide notification dated 18.8.2015 till attaining the age of superannuation i.e. 22.11.2015. On this disclosure the matter was fixed in court in order to provide fair opportunity to both the learned counsel to address the court in the changed circumstances.

5. To this latest development, the learned counsel for the petitioner argued it is evident that the additional charge was illegal therefore during the pendency of this petition the respondent Nos.1 and 2 themselves have withdrawn the additional charge and to favor the respondent No.3 they have devised a methodology to continue the respondent No.3 on deputation till the verge of his retirement which is also illegal and in violation of the judgment of hon’ble Supreme Court reported in 2013 SCMR 1752. He further argued that the respondent No.3 is not a civil servant and it is an admitted fact that he is an employee of Pakistan Agriculture Research Council which has been constituted under the Pakistan Research Council Ordinance, 1981. Learned counsel referred to Section 16 of the Ordinance, which provides in clear terms that every civil servant employed in the attached department and serving in or under this council immediately before the commencement of this Ordinance including persons on deputation to other organization or abroad shall cease to be a civil servant and become employee of the council on the same terms and condition including remuneration, tenure of service, rights and privileges as to pension and gratuity and other matters as were applicable to him before the commencement of this Ordinance. Learned counsel also quoted paragraph 129 of the hon’ble Supreme Court Judgment reported in 2013 SCMR 1752 and argued that the apex court has already held that “no non-civil servant can be transferred and appointed by way of deputation to any cadre”.

6. The learned Additional Attorney General could not dispute the veracity and without beating around the bush he admitted that the respondent No.3 is not a civil servant, nevertheless, he referred to SL.21-A of the Estacode and argued that the respondent Nos.1 and 2 in the public interest can fill the promotion post through temporary transfer/posting of highly qualified civil servant or by deputation of highly qualified employee of public sector corporation. He further argued that the respondent No.3 is no more on additional charge, but he is holding the post of Director General, Department of Plant Protection on deputation which is under the permissible limits and the petitioner has no lawful right and authority to demur this arrangement.

7. Heard the arguments. To start with let us accentuate SRO 19(I)86 issued by Ministry of Food, Agriculture and Cooperation (Food and Agriculture Division) on 16.1.1986 by means of which method of appointment of Plant Protection Adviser, Director, Joint Director is provided. It is clearly alluded to that the post of Plant Protection Adviser, Director and Joint Director can be filled in by promotion and failing that by initial appointment. At this juncture let us also clarify that vide SRO 286(1)/2000 dated 23.5.2000, the post of DPP Adviser and Director BS-20, and Joint Director (Technical) BS-19 and Joint Director (Admin) BS-19 were re-designated as DPP Adviser and Director General BS-20, Director (Technical) BS-19 and Director (Admin) BS-19 respectively. Instead of making appointment either by promotion or initial appointment, the respondent No.3 was entrusted additional charge vide office order dated 14.2.2014 for a period of three months or till availability of regular incumbent of the post whichever is earlier. Though the additional charge was initially allowed for three months but after lapse of considerable period another notification was issued on 15.10.2014 and the period of additional charge was extended for further period of three months from 17.5.2014 to 16.08.2014 with retrospective effect and again on 17.9.2015 another notification was issued for the same additional charge and this time again the period of additional charge was protected from 24.2.2015 for a period of three months. No palpable or discernible rationalization was shown except an imitation cause that the additional charge will continue to be enjoyed by the respondent No.3 till the availability of regular incumbent of the post. A letter dated 6.9.2013 is also available on record communicated by the Assistant Director (Admin) of DPP Ministry of National Food Security & Research, Department of Plant Protection to Section Officer (Admn-I), Ministry of National Food Security & Research that lastly the post was advertised on 10.8.2003 through FPSC for initial appointment but without any nomination so he made a request that the post may be advertised for initial appointment through FPSC and requisition Form of FPSC was also attached with the letter.

8. Under the Civil Servant (Appointment, Promotion and Transfer) Rules 1973, no expression i.e. additional charge is postulated however, under Rule 3, methods of appointment are provided viz. by promotion in accordance with the part I, by transfer in accordance with part II and by initial appointment in accordance with part III of the aforementioned rules. So far as acting charge is concerned, it is provided in Rule 8-B with the condition that the appointment on acting charge basis shall be made on the recommendations of the DPC or the Central Selection Board as the case may be. It is further provided that the acting charge shall not amount to appointment by promotion on regular basis for any purpose including seniority and this shall also not confer any vested right or regular promotion to the post holding on acting charge basis.

9. One more important facet cannot be disregarded that the respondent No.3 is an employee of PARC constituted under the PARC Ordinance, 1981. Section 16 of the Ordinance avows vividly that the employee of the council ceased to be a civil servant and stand transferred and become employee of the council on the same terms and conditions including remuneration, tenure of service rights and privileges as to pension and gratuity and other matters as were applicable to him immediately before the commencement of this Ordinance until his employment in the council is terminated in accordance with his condition of service or his terms and condition are altered by regulation which shall not be less favourable than those by which he was governed immediately before his transfer to the council. It is obvious that the respondent No.3 being an employee of the Council lost the status of civil servant even though he was given additional charge on the plea that except him nobody was competent to hold the post of Director General DPP, which does not seem logical. Unlimited period of acting charge and or additional charge has been deprecated by the superior courts. It is inexplicable that in the whole hierarchy and or chain of command of the civil servants not a single person is competent to be appointed or promoted on regular basis as Director General DPP.

10. In the case of Safdar Ali Sahito vs. Province of Sindh and others authored by one of us (Muhammad Ali Mazhar-J), it was held that writ of quo warranto is in the nature of laying an information before a court against a person who claimed and usurped an office, franchise or liberty. Object of writ of quo warranto is to determine legality of holder of statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. It is also well settled principle that for issuance of writ of quo warranto, the person invoking the jurisdiction under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi. So far as the appointment of a person on OPS, current charge or acting charge or additional charge is concerned, it was held in the same judgment as follows:-

“23. The procedure for appointment, promotion and transfer is already provided under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 read with Sindh Civil Servants Act, 1973. The Government in case of exigency may appoint the person on OPS basis on stopgap arrangement or current charge or acting charge or additional charge basis but it does not give any discretionary right or authority to violate the express provisions of law and relevant rules and continue the OPS or additional charge arrangement for unlimited period of time. If this tendency is encouraged, it will create much frustration in the other employees of same grade and cadres and will also obstruct and hinder the right of promotion of the deserving employees. The good governance demands that efforts should be made to fill up the permanent vacant posts and vacancies within a reasonable period of time. Our constitutional and legal system attaches foremost importance to transparency and fairness in the administration of matters relating to appointment and career building of civil servants who are required to perform sensitive public duties strictly in accordance with law. There is no room for spoils system in our jurisprudence.”

11. Another significant attribute is the development that acting or additional charge has been withdrawn and now vide notification dated 18.8.2015, the respondent No.3 has been assigned the charge on deputation till attaining the age of his superannuation i.e. 22.11.2015. This unequivocally demonstrates rather substantiates that the respondents were conscious and sentient that unlimited extensions in the acting or additional charge is in violation of Civil Servants Act as well as Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, therefore, a new strategy was contrived to protect the length of additional charge through deputation. It is well settled proposition of law that the court may take the judicial notice of the changed situations and mold the relief accordingly in order to do the substantial justice between the parties. This petition is for quo warranto, therefore the petitioner cannot be non-suited on the ground that he had challenged the additional charge only which is over so he should file fresh petition that would be nothing other than a mere technicality under which unjustified term of office cannot be continued or shielded. The hon’ble Supreme Court in the contempt proceedings against the Chief Secretary Sindh and others reported in 2013 SCMR 1752 considered the minutiae and niceties of appointment or transfer on deputation. In paragraph 127 of the judgment, it is held that issue of deputation has created lot of unrest amongst the civil servants. The term “deputation” has not been provided under any civil service law and this term has been borrowed from Estacode, 2009 Edition, Chapter-III at page 385. Part II at page 426 of the Estacode which deals with the issue of deputation and at Serial No.29 the issue of deputation has been defined. In paragraph 129 also the apex court held that no non civil servant can be transferred by way of deputation to any cadre. Copy of this judgment was sent by the apex court to all Chief Secretaries of the Provinces as well as the Secretary, Establishment Division, Government of Pakistan, Islamabad with the directions to streamline the service structure of civil servants in line with the principles laid down in the above judgment.

12. The learned Additional Attorney General for Pakistan relied upon S.L. 21-A of Estacode (Edition 2007) Volume-I which germane to the amendment in the recruitment rules of civil posts. In order to shield and protect the posting of respondent No.3 on deputation, the learned Additional Attorney General robustly relied on clause 2 of the aforesaid S.L. therefore, it would be convenient to reproduce it as under:-

“2. Sometimes it may be necessary, in the public interest, to fill promotion posts through temporary transfer/posting of a highly qualified civil servant or by deputation of a highly qualified employee of a public sector corporation. In order to make an enabling provision for this purpose in the recruitment rules, the Chief Executive has been pleased to approve that the following proviso shall be added below the above cited proviso in the recruitment rules of all civil posts:-

Provided further that if no suitable person is available for promotion to a post, it may be filled, in the public interest, by temporary transfer/posting of a civil servant, or by deputation of an employee of a public sector corporation, in consultation with his appointing authority.”

13. Even if we look into the language couched and embedded in the proviso of aforesaid S.L. it is clear that the deputation necessitates only if no suitable person is available to a particular post and in the public interest temporary transfer/posting of a civil servant or by deputation of an employee of a public sector corporation is permissible in consultation with his appointing authority. Let us first explicate that the apex court in the judgment reported in 2013 SCMR 1752 has already provided enlightened guidelines with directions to deal the issue of deputation. So any such amendments made and introduced at an earlier time or prior to the judgment of apex court cannot be considered binding. Admittedly the respondent No.3 is not a civil servant and according to the aforesaid dicta laid down by the hon’ble Supreme Court, no non-civil servant can be transferred and appointed by way of deputation to any cadre. One may question that the judgment expounded mostly in relation to the challenge to the vires of legislation made by the Province of Sindh but in all conscience, a domineering characteristic cannot be ignored that by means of this judgment the directions were issued to all provinces and the Federation to streamline the service structure of civil servants in line with the principles laid down in this very judgment and this was not confined to any particular province but the apex court enunciated and expounded the principle of law across the board. The judgment of hon’ble Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. If the judgment of the hon’ble Supreme Court is not implemented or put into effect, an answer to this question has been given under Article 204 of the Constitution. In the case in hand the question of mala fide and bona fide also need to be examined to some extent. After hold on the respondent No.3 to an additional charge for a long time without making any sincere effort to fill the post by regular appointment, a new stratagem has been evolved to retain him now on deputation for further period after withdrawing the additional/acting charge and this happened only because of this petition so in our view, the element of bona fide is missing. Nothing demonstrated before us to show that during the entire tenure of respondent No.3 while holding additional/acting charge, whether any effort was made to fill the post on permanent basis which amounts to the negation of the dictum laid down by hon’ble Supreme Court and we can safely hold that the deputation order has been issued to circumvent the directions which amounts to contempt.

14. As a result of above discussion, this petition is admitted to regular hearing and disposed of in the following terms:-

(a) The entrustment of additional/acting charge to the respondent No.3 as Director General, Department of Plant Protection for an unlimited period was unlawful which has been otherwise withdrawn by the respondent Nos.1 and 2, therefore no further order is required to be passed by us in relation to holding of additional/acting charge.

(b) Nevertheless the Notification F.No.8-1/2012-DPP-NFS&R, dated 18.8.2015, issued by Section Officer, Ministry of National Food Security and Research, Government of Pakistan, Islamabad is declared to have been issued without lawful authority and of no legal effect. Consequently, the respondent No.3 is restrained from holding the post of Director General (BS-20) Department of Plant Protection on deputation with immediate effect.

(c) The respondent Nos.1 and 2 are directed to make regular appointment to the post of Director General (BS-20) Department of Plant Protection immediately in accordance with the law.

(d) The injunction application is also disposed of in the above terms.

Judge

Karachi,

Dated.2.11.2015