ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                C.P No.D-60 of 2010                         

DATE         ORDER WITH SIGNATURE OF JUDGE

1. FOR KATCHA PESHI.

                        2. FOR HEARING OF MA NO.180/10.

                        3. FOR HEARING OF MA NO.360/10.

24.02.2010.

Mr. Noorul Haque Qureshi, Advocate for petitioner.

Syed Muhammad Saulat Rizvi, Advocate for Respondent Kashmir Zardari.

Mr. Allah Bachayo Soomro, Additional A.G, Sindh.

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                        Through this petition the Petitioner has sought a declaration that notification dated 16-01-2010 issued by Excise & Taxation Department, Government of Sindh whereby Respondent No.3 was promoted from the post of Assistant Excise & Taxation Officer (BPS-16) to the post of Excise & Taxation Officer (BPS-17) on out of turn basis as a special case in recognition of his outstanding performance under Section 9-A of Sindh Civil Servants Act, 1973 the Petitioner has also sought an order restraining the Respondents from enforcing the said notification, however, subsequent to such notification, the Excise & Taxation Department on 13-05-2009 issued an other notification whereby deleting the words “under section 9-A of Sindh Civil Servants Act, 1973” from the earlier notification and subsequent to that another notification was issued whereby Respondent No.3 was posted as Deputy Director/Sr. E.T.O-III(BS-18) Excise, Hyderabad in his own pay and scale, whereas the Petitioner who was at that time Deputy Director/Sr. E.T.O (BS-18) was directed to report to Excise & Taxation Department (Secretariat), Karachi with immediate effect till further orders. It is understandable that section 9-A was deleted from the first notification for the reasons that through an amendment section 9-A was deleted from the Sindh Civil Servants Act, 1973 and therefore, the power granted to the competent authority to grant, out of turn promotion to a Civil Servant for acts gallantry and/or for exceptional performance beyond the call of his duty was no more available.

                        In the circumstances there remains no doubt that the out of turn promotion of Respondent No.3 was illegal, unlawfully and without any legal sanction, however, in view of the fact that the Petitioner at the time of such promotion of respondent No.3 from the BPS-16 to BPS-17 was and is still holding BS-18, can not lawfully be termed as an aggrieved person within the meaning of Constitution to be able to challenge such notification and therefore, it is difficult to say that the present Petition challenging the aforesaid notification is lawfully maintainable. We would, therefore, direct the Petitioner to file appropriate proceedings which in the first instance would be a Departmental Appeal before the competent authority such being the Chief Secretary, Government of Sindh, with direction to Chief Secretary to decide such appeal within a week from filing of the said appeal.

                        This petition is disposed of along with pending applications.

                                                                                                                 JUDGE

                                                                              JUDGE.

A.C