PW-1 EX

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-4528/2014

___________________________________________________________________

Date Order with signature of Judge

1.For Katcha Peshi.

2.For hearing of CMA No.21979/2014.

Present:-

1) Mr. Justice Syed Hasan Azhar Rizvi

2) Mr. Justice Azizur Rehman

M/s. Haider Waheed and Shahzeb Akhtar Khan,

Advocates for the Petitioner.

Mr. Salman Talibuddin, Additional Attorney General

along with Mr.Abdul Sadiq Tanoli, Standing counsel.

M/s. Malik Naeem Iqbal and Muhammad Saleem,

Advocates for Respondent No.2.

_____________

SYED HASAN AZHAR RIZVI, J:- The petitioner has filed this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan for issuing writ of Quo Warranto against the respondent No.2 as according to him, she is not entitled for holding her present position after her retirement on attaining the age of superannuation with the following prayers:-

“(A) That the Honorable High Court may be pleased to declare the Impugned Notification dated 13.08.2014 as void ab initio and of no legal effect due to it being unlawful, malafide and without jurisdiction;

(B) That the Honorable High Court may be pleased to restrain the Respondent No.2 from performing functions on the post of Controller General of Accounts;

(C) That the Honorable High Court may be pleased to set aside any and all orders made by the Respondent No.2 subsequent to the extension granted vide Impugned Notification dated 13.08.2014;

(D) That the Honorable High Court may be pleased to appoint (on regular and/or acting/additional charge basis, and/or direct the Respondent No.1 to appoint, a civil servant on the post of Controller General of Accounts;

(E) That the Honorable High Court may grant any other/further relief as it deem appropriate in the circumstances of the case.

(F) That the Honorable High Court may be pleased to grant the cost of the petition to the petitioner.”

2. Succinctly the facts of the case are that petitioner is a BPS-20 officer of the Pakistan Audit & Accounts Group Services (PA&AS) and presently serving as the Controller of Naval Accounts, Karachi and is in line for promotion to BPS-21. According to him, due to the malafide failure of the respondents to make promotions to BPS-22 from amongst the officers of BPS-21, there are currently no vacancies in BPS-21 against which the petitioner, amongst others, can be promoted from BPS-20. It was alleged that the office of Controller General of Accounts (hereinafter referred to as CGA) was occupied by the respondent No.2 being a member of the Accounts Group and being a BPS-22 officer. However, she retired from the Civil Service of Pakistan on 14.08.2014 and despite such retirement the respondent No.1 issued the impugned notification by way of which the respondent No.2 was re-employed after superannuation.

3. Comments have been filed on behalf of the respondents No.1 and 2 wherein it was, inter alia, contended that Finance Division, which is the administrative Division of the office of CGA initiated a summary for the Prime Minister dated 12.08.2014 in which it was proposed that respondent No.2 incumbent CGA may be given extension with effect from 14^th August, 2014 or till an officer of Pakistan Audit and Accounts Service is promoted to BS-22 and appointed CGA, whichever is earlier. The President of Pakistan on the advice of the Prime Minister has approved the proposal of Finance Division on 13.08.2014, which was notified by the Establishment Division through notification impugned in the instant petition. It was further stated that petitioner has misrepresented the facts and his contention that a B-21 Officer can be appointed as CGA. It was also stated that the next contention of the petitioner that his promotion is blocked by the extension of the CGA is also misleading because he is BS-20 Officer and he is at No.7 in the seniority list of BS-20 officers to be promoted to next grade to BS-21. Therefore the extension of CGA in no way blocks his promotion and he is not in any way aggrieved by this extension. However, the real reason behind this petition is that the petitioner who at present is posted as Controller of Naval Accounts Karachi was repatriated on the Prime Minister’s orders to report to his parent office. These repatriation orders were conveyed by the CGA against which the petitioner has obtained stay orders through a Civil Suit No.1128/2014. Therefore, the petitioner has filed this petition, which is liable to be dismissed with cost being malafide, not based on the facts and the petitioner being not aggrieved party.

4. We have heard the learned counsel for the petitioner, learned counsel for respondent No.2 and learned Additional Attorney General for Pakistan at Katcha Peshi stage and perused the available material.

5. Mr. Haider Waheed, learned counsel for the petitioner has contended that the Notification dated 30.06.2014 issued by respondent No.1 for re-appointment of respondent No.2 after her retirement on superannuation is unlawful, malafide and without jurisdiction as it is in violation of Section 4 of the CGA Ordinance, 2001, which provides that Controller General of Accounts shall be appointed by the President from amongst the officers of the Accounts Group and shall be a BPS-22 officer. He urged that there are two mandatory requirements for the purposes of a person appointment/re-appointment/extension to/on the post of CGA (i) She/he must be from amongst the officers of the Accounts Group and (ii) She/he must be a BPS-22 officer. He also urged that both the requirements for appointment as CGA are lacking in the notification impugned in this petition for the simple reasons that the respondent No.2 retired from the civil service on 14.08.2014, hence she no more remained an officer of the Accounts Groups and she no more remained an officer of BPS-22. He submitted that a civil servant once retired does no more fall within the definition of a civil servant. In this regard he made reference to Section 2(b) of the Civil Servants Act, 1973. He also contended that a retired civil servant is not included in the definition of a civil servant and if the respondent No.2 is not a civil servant she can only as a matter of necessary consequence not be considered to be from amongst the officers of the Accounts Group nor can she be considered from amongst the BPS-22 officers of the group. In support of his above submission, he placed reliance on the case of AHMED FARAZ vs. GOVERNMENT OF PAKISTAN & 2 OTHERS [1991 PLC (C.S) 407]. The relevant portion of the said judgment is reproduced below:-

“The consistent trend of those authorities was to allow either party the right to exercise option by giving in advance either notice or pay in lieu thereof. Secondly, there was no enacted law dealing with re-employment of retired persons. The reason for absence of any such law was suggestive of the fact that it had to be left to the parties themselves while undertaking such engagement. The attempt to bring it within the purview of the expression "service of Pakistan" referred to in Articles 240 and 260 of the Constitution was not much helpful. Article 240 no doubt envisaged regulating appointment and the conditions of service of persons in the "service of Pakistan" by Act of Parliament but the Parliament legislated no statute to regulate reemployment of retired Officers. The Act of Parliament namely, the Civil Servants Act, 1973, threw out persons employed on contract from the ambit of the definition of "civil servant". It has been reproduced in para.7 ante. Exclusion of a contractual employment would a fortiorari make the whole of the Act inapplicable to persons employed on contract. Section 11 was wrongly claimed to be applicable to the petitioner's tenure. It deals with termination of service of "a civil servant" who definition-wise would not allow the petitioner to fall within its mischief. No doubt it provided for termination of service on the expiry of initial or extended period of employment, but the same related to that of "a civil servant". Even if the petitioner's re-employment amounted to "extend period of employment" he could not invoke the section on this pretext as the extended period of employment was meant to be that of a civil servant. Similarly it was inconsequential to seek application of-section 14. It related to employment after retirement provided it was necessary in the public interest. Although the contention was that the petitioner's re-employment was in the public interest, yet the terms and conditions contained in Annex.: `A' and `B' made no reference to it. There was no provision in the said section that the re-employment after having been made in the public interest, would be governed by other provisions of the whole Act. I could see considerable substance in the contention that the Act primarily dealt with ad hoc, temporary and permanent employments, and not the one obtained on a contract. This is what the various authorities cited earlier laid down quite succinctly. The argument that the re-employment had statutory basis or that it could be terminated only in the public interest, was not persuading because both these aspects were not covered by any construction of the statute.”

6. Learned counsel for the petitioner next contended that at present twenty five (25) officers awaiting promotion in Grade BPS-21 of the relevant cadre, amongst whom there are three (03) officers who will retire before the illegal extension/-re-employment of the respondent No.2 is completed. He further contended that there is a dearth of BPS-22 grade officers due to the Prime Minister’s office malafidely delaying the approval of their summaries for signing by the President thereby creating an illegal vacuum in the availability of deserving officers in Grade BPS-22, whilst there are vacancies available in the relevant grade of the said cadre. He also contended that functions of the CGA can be performed by a Grade -21 officer, as has been done previously in the said cadre. Learned counsel has made reference to Section 14 of the Civil Servants Act, 1973, and argued that extension of the respondent No.2’s services is illegal as no public interest being served with extending the services of the respondent No.2, and the fact that there are officers available to perform the functions of the CGA. He further contended that Hon’ble Supreme Court of Pakistan has repeatedly deplored the practice of re-employment of retired individuals from the civil service and in this regard he made reference to a Suo Moto case of HAJJ SCAM reported in PLD 2011 SC 277.

7. Learned counsel for the petitioner also drawn our attention to the policy and procedure for employment after retirement and stated that the present Government has framed a policy for re-employment of Government servants and cases for re-employment would, in future, be considered in accordance with the following criteria:

“i) Non availability of suitably qualified or experienced officers to replace the retiring officer;

ii) the officer is a highly competent person with distinction in his profession/field;

iii) the re-employment does not cause a promotion block; and

iv) retention of the retiring officer, for a specified period, is in the public interest.”

This policy would also apply to government controlled corporations and other autonomous bodies.

3. Proposals for re-employment are required to be accompanied with the following documents/information:-

(a) The proposal duly signed by Secretary or Additional Secretary Incharge of the Ministry concerned to be received in the Establishment Division 6 months before the officers id due to attain the age of superannuation and has the approval of the Minister Incharge;

(b) the steps taken to train the substitute, if any;

(d) certificate that the officer is medically fit.

4. Re-employment beyond the age of superannuation in all cases requires the approval of the Prime Minister.”

8. Learned counsel for the petitioner contended that all the ministries/ divisions are advised not to initiate cases of re-employment of civil servants beyond the age of superannuation unless that is consider unavoidable due to non-availability of his replacement and the importance and sensitivity of the job, which must be clearly brought out while initiating any such proposal and direction all concerned ministries and attached department/ autonomous bodies to strictly follow the above guidelines. He, however, contended that as per existing policy of the Government, re-employment of retired civil servants beyond superannuation is not encouraged except in cases when a civil servant possesses such expertise that his services are irreplaceable. He also urged that if it is intended to get the retiring person re-employment on contract in public interests to get his contract extended, a proposal in the form of a summary for the Prime Minister should be submitted to this Division about six months in advance from the date of his retirement from service/expiry of the contract so that Establishment Division could have sufficient time to process it properly. He, therefore, contended that all the Ministries/Divisions are requested to ensure that the instructions already issued by the Establishment Division are complied with in letter and spirit and no officer is allowed to continue in office after superannuation/on expiry of the period of contract re-employment unless prior approval of the competent authority is obtained in advance and in case of unauthorized overstayal, the financial liability or such an irregularity shall rest upon the head of the department and the officer concerned himself. He urged that not a single requirement as mandated in the policy guideline has been fulfilled. None of the respondents have filed single document that would show compliance with any of the mandatory requirements prior to re-employment after retirement of the respondent No.2. He, however, submitted that such criterion have not been met by the respondent No.1, and therefore the impugned notification is illegal and without jurisdiction, as there has been no attempt to show the retention to be an exception and there is no matter of public interest that would facilitate such an exception. He, therefore, prayed for grant of this petition as prayed for.

9. Mr. Salman Talibuddin, learned Additional Attorney General for Pakistan while, relying on the parawise comments already filed by the respondents No.1, vehemently opposed the instant petition. He fully support the Notification dated 13.08.2014 issued by respondent No.1 and stated that the extension/re-appointment of respondents No.2 is legal and lawful He submitted that no illegality or irregularity has been committed by respondent No.1 for extension in service of respondent No.2, which was made by the President of Pakistan on the advice of the Prime Minister on the proposal of Financial Division. He also submitted that there is no bar on extension of CGA. He, however, submitted that holding the post of CGA by respondent No.2 is essential so also in the public interest as by November of every year accounts has to be finalized. Therefore, he prayed for dismissal of instant petition with cost.

10. Mr. Malik Naeem Iqbal, learned counsel for the respondent No.2 contended that respondent No.2 is a B-22 grade officer and she has been granted extension by the competent authority Viz. President of Pakistan according to the guidelines provided in the Estacode and CGA Ordinance 2001. He also contended that the notification impugned in this petition issued by the President of Pakistan as a ‘stopgap arrangement’ as at the relevant time no officer of BS-22 was available in the Department. He further urged that the present CGA’s extension in service for four and half months from 14^th August to 31^st December, 2014 or till the promotion of PA&AS Officers in BS-22 and her appointment by the President as CGA whichever is earlier. He urged that there is no bar on extension of CGA particularly when it was made in the public interest and the public interest has to be decided by the Government and not by the petitioner. He also urged that extension of CGA was granted by the President of Pakistan keeping in view all the guidelines and according to the rules laid down in the Estacode. He has drawn our attention to Section 4 of CGA Ordinance 2001 [Ordinance XXIV of 2001] and urged that there is no mention of word ‘serving’ in the said Ordinance. He stated that extension of respondent No.2 does not create any hindrance in the promotion of any B-21 Officer of PA&AS because the impugned notification of extension clearly states that the extension is granted with the condition that if, any officer is promoted to B-22 then this extension shall be discontinued. He urged that the case of the petitioner falls within the ambit of Section 14 of the Civil Servants Act, 1973 and not Section 4 of the CGA Ordinance, 2001, which relates to the appointment of CGA by the President from amongst the officers of the Accounts Groups and shall be a BPS-22 officer.

11. Learned counsel for the respondent No.2 argued that no meeting of high powered Selection Board has been held after 27^th November, 2013 and since then no officer of any occupational group has been elevated to BS-22, as such the petitioner leveled baseless allegation to the office of Prime Minister for causing delay in approval of summaries sent by respondent No.3. The CGA Ordinance 2001, makes it mandatory that only a B-22 officer of PA&AS can be posted as CGA. He submitted that the impugned notification of extension is absolutely legal and according to the rules and regulations as respondent No.2 is a civil servant and also fulfills all the conditions for re-employment. He refuted the contention of the petitioner that any B-21 officer was ever appointed by the President of Pakistan as CGA. The extension of the CGA does not create any hindrance in the promotion of any BS-21 officer of PA&AS because the impugned notification of extension clearly states that the extension is granted with the condition that if, any officer is promoted to BS-22 and appointed by the President as CGA then this extension shall be discontinued automatically. He submitted that according to Section 14(1) of the Civil Servant Act 1973 re-employment is allowed if, it is necessary in the public interest and made with the approval of the authority. He also submitted that extension was granted purely in ‘public interest’ and on ‘merit’ so that the proper functioning of all the accounting organization may continue functioning without any halt, interruption and the extension was necessitated since the incumbent was the only B-22 officer in the PA&AS cadre.

12. Lastly, learned counsel for the respondent No.2 contended that the real reason behind this petition is that the petitioner who at present is posted as Controller of Naval Accounts Karachi was repatriated on the Prime Minister’s orders to report to his parent office. These repatriation orders were conveyed by the CGA against which the petitioner has obtained stay orders through a Civil Suit No.1128/2014. Therefore, the petitioner has filed this petition, which is liable to be dismissed with cost being malafide, not based on the facts and the petitioner moreover is also not an aggrieved party. He stated that a similar writ petition No.3795/2014 filed by the Auditor General of Pakistan in the Hon’ble Islamabad High Court was dismissed on the issue of maintainability because no civil servant or a constitutional post holder can challenge an order issued by the Federal Government. In support of his submission, learned counsel has placed reliance on the cases of ARBAB IMTIAZ KHAN vs. ASIM JAMIL ZUBEDI and Another [2011 PLC (C.S) 482], SHAZADO LANGAH vs. FEDERATION OF PAKISTAN and Others [2014 PLC (C.S) 853], MUZAMMAL AHMED KHAN vs. IMRAN MEER [2010 PLC (C.S) 1023] and SAFDAR ALI SAHITO vs. PROVINCE OF SINDH & others (2011 SBLR Sindh 829).

13. In rebuttal, Mr. Haider Waheed, advocate for the petitioner contended that the arguments of the respondents that the case of the petitioner falls within the ambit of Section 14 of the Civil Servants Act, 1973 (which provides for re-employment of retired persons in very exceptional cases) and not Section 4 of the CGA Ordinance, 2001, is untenable in law for the reason that CGA Ordinance 2001, is a special law which over rides the applicability of the general law i.e. Civil Servants Act, 1973 and it is by now a settled law that where legislature has enacted a special law for a specific purpose which shall override the general law on the subject. In relation to the office of a CGA the legislature has enacted a special law in the shape of the CGA Ordinance 2001, which governs the all necessary functions and powers of the CGA whereas, the Civil Servants Act, 1973 governs the functions and power as well as the ‘terms’ and ‘conditions’ of service of a normal civil servant. He urged that Section 14 provides for re-employment on the same post of a normal civil servant. In juxtaposition, Section 4 provides for appointment of a person to the post of CGA. He submitted that recourse, if at all, could only have been made to Section 14 of the Civil Servants Act, 1973, only if, there was any vacuum in the CGA Ordinance, 2001 and there was no conflict between the provisions of Section 14 of the Civil Servants Act, 1973, with any provision of the CGA Ordinance 2001. He further submitted that where there is already a provision in the CGA Ordinance 2001 for appointment to the post of CGA and it does not include any mention of re-appointment/re-employment/ extension in service, it will necessarily have to be assumed that the legislature with full cognizance and intention did not include such form of appointment within the purview of Section 4 of CGA Ordinance, 2001. In such circumstances there exists a conflict between the provisions of Section 14 of the Civil Servants Act and Section 4 of the CGA Ordinance, 2001, hence the special law has to prevail over the general law. He urged that even if it is assumed for the sake of arguments that the appointment of the respondent No.2 was made pursuant to Section 14 of the Civil Servant Act, 1973, even then the codal formalities required for such an appointment are abhorrently found wanting. So for the arguments of the learned counsel for the respondents that the respondent No.2’s extension/re-employment is a stopgap measure and not a proper appointment, he submitted that it is also belied by the settled case law on the point. In this regard he relied upon the judgment reported in the case reported in PLD 2010 SC 1109. The relevant observation is reproduced below:-

“52. It is a principle too well established by now that no one could be hard or allowed to reap the benefits of his own omissions, misfeasance or non-feasance. And more importantly, the provisions envisaging appointments of acting incumbent are a mere stopgap arrangement meant to cater for emergencies and such-like provisions can never be allowed to be used to circumvent the law relating to the making of a regular appointment to such an officer or to be used as a substitute for a regular appointment or to be abused to put an un-qualified person to hold a post which the law does not permit him to hold.”

14. Learned counsel for the petitioner in response to the arguments of the learned counsel for the respondent No.2 that in case Section 14 of the Civil Servants Act, 1973 is inapplicable, even then the President could make an order for removal of difficulty under Section 13 of the CGA Ordinance, 2001, has urged that respondents have miserably failed to show what is the nature of the difficulty due to which the President would be forced to re-employ the respondent No.2. He submitted that removal of difficulty clause can only be availed where it is not in conflict with any other provision of the Ordinance, hence where re-employment after retirement is proven to be contrary to the letter and spirit of Section 4 of the CGA Ordinance, 2001 then no reliance whatsoever can be placed on Section 13 of the CGA Ordinance, 2001, to achieve what is prohibited as per Section 4 of CGA Ordinance. In support of his submission, learned counsel has relied upon the case of COMMISISONER OF INCOME TAX, ZONE-C, LAHORE and others vs. M/S. KASHMIR EDIBILE OILS LTD. and others (2006 SCMR 109).

15. We have given our anxious consideration to the arguments advanced by the learned counsel for the respective parties and also perused the case law on the subject. Before proceeding further, it will be useful to reproduce below the impugned notification dated 13.08.2014 issued by respondent No.1 for extension of respondent No.2:-

“NOTIFICATION

The President of Pakistan has been pleased to approve extension of Mrs. Farah Ayub Tarin, incumbent Controller General of Accounts (CGA) with effect from 14^th August, 2014, after her superannuation on 13.08.2014, to 31^st December, 2014 or till an Officer of Pakistan Audit & Accounts Service (PA&AS), is promoted to BS-22 and appointed as CGA, whichever is earlier.”

16. The scope and extent of a writ of quo warranto are well established. The constitutional` jurisdiction in this regard is conferred on the High Courts in terms of Article 199 of the Constitution clause (1) of which provides in material part as follows:

"(1) Subject to the Constitution, a High Court may if it is satisfied that no other adequate remedy is provided by law,---

(b) on the application of any person make an order-

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office".

17. The first point to note is that any person can apply for a writ of quo warranto, he need not be an aggrieved person or party. The writ is directed against a person holding, or purporting to hold public office, and every member of the public at large is regarded as having an interest in ensuring, and/or demanding that a public office is, or be, held only by a person having lawful authority to do so. Secondly, the writ is discretionary, i.e., the Court is not bound to grant the relief sought even if the petitioner makes out a case and may withhold the writ in appropriate circumstances. Thirdly, the authority purporting to appoint the respondent to the public office need not be a party to the proceedings for the writ to issue. The scope and power of the High Court while considering whether or not to issue a writ of quo warranto was stated in the following terms by the Supreme Court in Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97:

"The writ of quo warranto, which is of course, is now an obsolete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office. It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to the said office. Therefore, keeping in view the nature of such proceedings the learned High Court can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record and this exercise can be done suo motu even if its attention is not drawn by the parties concerned."

18. The crux of the grievance agitated by the petitioner through the instant petition is in respect of extension in term of office of respondent No.2 by respondent No.1 vide notification dated 13^th August, 2014 is illegal and void ab initio, as the said notification has been issued without fulfilling the codal formalities required for such an appointment. Section 14 of the Civil Servant Act, 1973 deals with the issue of employment after retirement. For advantageous it may be reproduced as under:-

“14. Employment after retirement.- (1) A retired civil servant shall not be re-employed under the Federal Government, unless such re-employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority;

Provided that, where the appointing authority is the President, such re-employment may be ordered with the approval of the President.

(2) Subject to the provisions of sub-section (1) of Section 3 of the Ex-Government Servants (Employment with Foreign Governments) (Prohibition) Act, 1966 (XII of 1966), a civil servant may during leave preparatory to retirement, or after retirement from Government service, seek any private employment.

Provided that where employment is sought by a civil servant while on leave preparatory to retirement or within two years of the date of his retirement, he shall obtain the prior approval of the prescribed authority.”

19. A bare reading of above quoted Section 14 clearly shows that a person may be re-employed after retirement but the appointment is necessary and in the public interest. More so, in case the appointing authority is President such re-employment may be ordered with the approval of the President. It is an admitted position that extension of respondent No.2 was necessitated because there is no BS-22 Officer available to be appointed as CGA except respondent No.2 therefore, this extension was granted purely in ‘public interest’ and on ‘merits’ for stopgap arrangement so that the proper functioning of all the accounting organization may continue functioning without any interruption keeping in view the fact that important fiscal matters have to be finalized in November every year, particularly when no Officer of BS-22 is available in PA&AS. Additionally, the language of the notification is very much clear as it is only till an officer from Pakistan Audit & Accounts Service (PA&AS), is promoted to BS-22 and appointed as CGA, whichever is earlier and not beyond 31^st December 2014. It may be noted that issue of re-employment also came under discussion before the larger bench of Hon’ble Supreme Court of Pakistan in Suo-Moto Case No.16 of 2011 and the larger Bench while dealing the issues has observed that re-employment of a person on his retirement must be made in public interest because re-employment against sanctioned post is likely to affect the interest of junior officers, who are waiting for promotion to the next higher ranks and their rights of promotion are blocked. It is settled principle of law that if the right of promotion is not blocked by re-employment then such powers can be exercised, then too in exceptional cases for a definite period. We may observe that this Court in the case of SAFDAR ALI vs. GOVERNMENT OF SINDH and 10 others [2011 PLC (C.S) 956] has relied upon the observations made in the case of PAKISTAN RAILWAYS vs. ZAFARULLAH (1997 SCMR 1730), which reads as under:-

"Before parting with the cases, we would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the Rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time a copy of this judgment be sent to Establishment Division for future guidance."

20. As regards the question of creation of hindrance in the promotion of any BS-21 officer of PA&AS is concerned, it may be observed that extension of respondent No.2 does not create blockage as the wording of the notification impugned in the petition is very much clear that extension of respondent No.2 only upto 31^st August, 2014 or till an officer of PA&AS is promoted to BS-22 and appointed as CGA, whichever is earlier. Therefore, the extension of respondent No.2 does not create hindrance in any manner to the officers to be promoted to BS-22 because the notification clearly states that the extension is granted with the condition that if any officer of PA&AS is promoted to BS-22 and appointed by the President as CGA then this extension shall be discontinued automatically and no further order is required for that purpose.

21. While dealing with the contention of the learned counsel for the petitioner that granting extension to respondent No.2 was not in accordance with law and without fulfilling the codal formalities. We have examined the record and observe that administrative division of the office of CGA initiated a summary for the Prime Minister bearing number F.2(1)-Exp.II/2007-3065/F/FS/2014 dated 12.08.2014, wherein it was proposed that respondent No.2 incumbent CGA may be given extension with effect from 14^th August, 2014 after her superannuation on 13.08.2014, upto 31^st December, 2014 or till an officer of Pakistan Audit and Accounts Service is promoted to BS-22 and appointed CGA whichever is earlier. The President of Pakistan on the advice of the Prime Minister approved the proposal of Finance Division on 13.08.2014, hence the extension of respondent No.2 was granted by the competent authority viz. the President of Pakistan in any manner not to be said as illegal and unlawful/malafide and/or without jurisdiction. It may not be out of place to mention here that a similar petition impugning the same notification which is subject matter of this petition has been challenged by the respondent No.3 Auditor General of Pakistan before the Hon’ble Islamabad High Court, which was dismissed as being incompetent.

22. Foregoing are the reasons for dismissal of the petition vide short order dated 12.09.2014.

JUDGE

Karachi; JUDGE

Dated: 20.11.2014.