Const. Petition No.D-613 of 2013
Present : Mr. Justice Muhammad Ali Mazhar
Mr. Justice Sadiq Hussain Bhatti
Ghulam Muhammad…………v/s…….Province of Sindh
& another
Date of hearing: 28.11.2013
M/s.Abrar Hassan, Usman Shaikh, Muhammad Iqbal Ch., Advocates for the petitioner.
Mr.Khalid Jawed Khan, A.G., Mr.Adnan Karim, AAG, Mr.Abdul Jalil Zubedi, AAG for respondents.
Mr.Muhammad Nawaz Shaikh, Advocate for the intervener Muhammad Iqbal Memon.
Mr.Nazir Ahmed Dhoon, Additional Secretary, Local Government Department, Government of Sindh.
……………….
Muhammad Ali Mazhar,J: Through this Constitution petition, the petitioner has approached this court for the following relief(s) :-
“(a) Hold and declare that the petitioner was promoted to BPS-20 by the competent authority after satisfying codal formalities.
(b) Hold and declare that repeated transfers of the petitioner for one reason or other are illegal, violative of the dicta of apex court with mala fide.
(c) Hold and declare that petitioner after his last posting as Director General, Hyderabad Development Authority vide Notification dated 7.12.2012 cannot be transferred before completion of his normal tenure of incumbency.
(d) Restrain permanently the respondents from transferring the petitioner from the post of Director General, Hyderabad Development Authority, in violation of HDA Act and its statutory Rules and Regulations.
(e) Ad interim relief is also prayed.
(f) award any other relief as deemed just and proper in the circumstances of the case”.
2. The brief facts of the case are that the petitioner was awarded promotion to BS-18 and then to BS-19 by the competent authority. After rendering the requisite services, the petitioner was further promoted to BS-20. The Hyderabad Development Authority has been established under the Hyderabad Development Act, 1976. After the promulgation of Sindh Local Government Ordinance, 2001, Hyderabad Development Authority was placed under the administration of Zilla Nazim. After repealing of Sindh Local Government Ordinance, 2001, the petitioner who was serving in BS-19 and being an officer of Hyderabad Development Authority posted as Director General, Hyderabad Development Authority on OPS (own pay scale) basis. However, after promotion of the petitioner in BS-20 all the requirements of the said post were complied with.
3. The case of the petitioner at present is that on 7.12.2012, two Notifications were issued i.e one notification was issued which allowed the petitioner to continue as Director General, (BS-20) Hyderabad Development Authority till further orders and but on the same day, another Notification was issued whereby the posting of the petitioner was declared illegal and he was directed to report to his parent department while Syed Fazil Shah Kazmi was allowed to continue as Director General (BS-20) Hyderabad Development Authority.
4. The learned counsel for the petitioner argued that the petitioner is performing his duties as Director General, Hyderabad Development Authority which is not a tenure post in terms of Hyderabad Development Authority Act, 1976, however, he referred to the Rule 3 (iii) of the Sindh Government Rules of Business, 1986, which pertains to the different Departments and their businesses. In this Rule it is provided that there shall be attached departments as shown in Column 3 of Schedule-I which pertains to the Local Government Housing and Town Planning Department and according to Column 3, the attached department is Town Planning Department while according to Column 4, Director Town Planning Department, Director General, Rural Development Department and Chief Engineer, Public Health Engineering Department may be the head of the attached departments. He argued that Hyderabad Development Authority is the attached department of Local Government Department and the petitioner being Director General of the same is the head of the department, notwithstanding the fact that Hyderabad Development Authority was established under the statute. He further argued that according to Schedule-IX attached with the aforesaid Rules of Business, normal period of tenure of head of attached department is for five years. He further referred to the Rule 35 which is pertaining to the transfer and posting specified in Column 2 of Schedule-IX.
5. The learned counsel also pointed out various postings of the petitioner in chronological order, which shows that the petitioner from 18.3.2010 to 22.02.2011 remained as Director General of Hyderabad Development Authority on OPS basis. Thereafter, he was promoted to the post of C.F.O. in BS-20. However, on 25.7.2012, one Qurban Khoso (BS-19) Officer was posted as Director General, Hyderabad Development Authority on OPS basis and the petitioner was replaced. Again, the petitioner was restored and the earlier notification was suspended. Then one Fazil Shah (BS-19) was posted on OPS basis thereafter, again the petitioner was restored to the position of Director General, Hyderabad Development Authority but again Fazil Shah was restored to the position of Director General, Hyderabad Development Authority vide Notification dated 7.12.2012, which was again cancelled and the petitioner was again posted as Director General, Hyderabad Development Authority.
6. On 22.2.2013, another learned division bench of this court directed the respondent to maintain the status quo, which order is still in field, but during the status quo order vide Notification dated 6.9.2013 one Iqbal Memon was posted as Director General, Hyderabad Development Authority and the petitioner was transferred and directed to report to Local Government Department. Hence the petitioner filed Misc. Applications Nos.23808 and 23811 of 2013 along with urgent application. One for trying the alleged contemnors and another application for suspension of the Notification dated 6.9.2013. Both the applications were placed before the division bench of this court on 9.9.2013 on which date while issuing the notice, the court observed that the interim orders passed on 22.2.2013 shall remain continue. It was further averred that the petitioner was never allowed to continue his tenure and he was interrupted at least three times, hence, whatever the period he served cannot be construed as a normal tenure. It was further argued that the petitioner was politically victimized and the transfer of the petitioner was not made due to any exigency of service. He further argued that number of FIRs were also lodged against the petitioner and he was constrained to file different petitions in this court. In support of his argument, the learned counsel for the petitioner relied upon the following case law:-
(1) PLD 1995 SC 530 (Zahid Akhter v. Government of Punjab & others). The hon’ble Supreme Court while dilating upon the Punjab Government Rules of Business, 1974 held that the normal period of posting of Government Servant at a station, according to the above referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years period becomes necessary in the opinion of competent authority. The transfer orders of Government servant concerned, therefore, could neither be justified on the plane of policy directive of Government nor they were sustainable on the language of Rule 21 (2) read with Schedule V of the Rules of Business, 1974.
(2) PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan & others). (Anita Turab case). In which it was held that whenever there were statutory provisions or rules or regulations which governed the matter of appointments of civil servants, the same must be followed, honestly and scrupulously. Even where there were no explicit rules governing the appointment process and appointments were to be made in the exercise of discretionary powers, such discretion must be employed in a structured, transparent and reasonable manner and in the public interest. Appointing authorities could not be allowed to exercise discretion at their whims or in an arbitrary manner; rather they were bound to act fairly, evenly and justly and their exercise of power was judicially reviewable. Removal and dismissal of civil servants from service was not left to anyone’s whims and caprice and it was governed by rules and regulations. When the ordinary tenure for a posting had been specified in the law or rules made thereunder, such tenure must be respected and could not be varied, except for compelling reasons, which should be recorded in writing and were judicially reviewable. Transfers of civil servants by political figures which were capricious and were based on consideration not in the public interest were not legally sustainable.
(3) He further referred to an unreported judgment passed by hon’ble Supreme Court in Civil Appeal No.39/2010 & others in which the hon’ble Supreme Court for the purposes of deciding the issue of maintainability of petition discussed the cases of various public sector projects/Government Organizations whether under Article 199 they are the persons discharging functions in connection with affairs of Federation or a Province within the meaning of Article 199 of the Constitution and amenable to writ jurisdiction of the High Court.
7. On the contrary, the learned A.G. argued that the petitioner was appointed on 18.3.2010 as Director General, Hyderabad Development Authority and continuously remained Director General up to 25.7.2012 i.e. for two years. Qurban Khoso who was appointed Director General, Hyderabad Development Authority who remained in the office till 10.8.2012 i.e. only for 15 days and later on Fazil Shah was appointed on 16.10.2012 who remained D.G. H.D.A up to 30.11.2012 which is only for one month and 14 days, thereafter, the petitioner was restored on 30.11.2012 and still he is continuing as Director General, Hyderabad Development Authority. The amassed effect of the tenure of the petitioner being Director General, Hyderabad Development Authority is more than three and half years and under the attire of interim orders, he is continuously enjoying this post as a vested right. The learned A.G argued one more crucial point that the post of Director General, Hyderabad Development Authority is a cadre post and the petitioner is required to be repatriated to his original position in view of the latest judgment of hon’ble Supreme Court passed in contempt proceedings initiated against the Chief Secretary, Government of Sindh and others, which is reported in 2013 SCMR 1752. He specifically referred to paragraph 126 of the judgment which is reproduced as under :-
“126. From the above discussion, the aforesaid legislative instruments on the issue of absorption are liable to be struck down being violative of constitutional provisions referred to hereinabove, therefore, we hold as under :-
(i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9-A of the Rules of 1974.
(ii) Sindh Government cannot order absorption of an employee who is a non-civil servant, however, an employee of an autonomous body can be absorbed in Sindh Government subject to conditions laid down under Rule 9-A of the Rules of 1974.
(iii) Sindh Government cannot absorb a civil servant of non-cadre post to any cadre which is meant for the officers who are recruited through competitive process.
(iv) Any backdated seniority cannot be granted to any absorbee and his inter-se seniority, on absorption in the cadre shall be maintained at the bottom as provided under the Rules regulating the seniority.
(v) No civil servant of a non-cadre post can be transferred out of cadre to be observed to a cadre post which is meant for recruitment through competitive process. A civil servant can be transferred out of cadre to any other department of the government subject to the restrictions contained under Rule 9(1) of the Rules of 1974.
(vi) The legislature cannot enlarge the definition of “civil servant” by appointing a non-civil servant through transfer on the basis of absorption conferring him status of civil servant pursuant to the impugned legislation which is violative of the scheme of civil service law as provided under Articles 240 and 242 of the Constitution.”
8. In the rebuttal, the learned counsel for the petitioner argued that the judgment of hon’ble Supreme Court (supra) is not applicable to the petitioner’s case, who is governed under the Hyderabad Development Authority Act, 1976. He further argued that under Section 7 of the aforesaid Act it is clearly provided that the Director General shall be appointed by Government on such terms and conditions as Government may determine. After referring to Section 7 of the aforesaid Act, the learned counsel further averred that there is nothing mentioned under Section 7 that the post of Director General, Hyderabad Development Authority is a cadre post and he took the stance that the petitioner was initially appointed as Accounts Officer and earlier to the appointment of Director General, he was C.F.O (chief financial officer). It was further admitted in past, the petitioner was also posted as Director General, H.D.A on O.P.S basis.
9. The pros and cons lead us to a conclusion that no doubt, under Section 7 of Hyderabad Development Authority Act, it is clearly provided that Director General shall be appointed by Government on such terms and conditions as Government may determine which does not mean in any way that the post of Director General, H.D.A cannot be a “cadre post”. The composition of Authority is provided under Section 4 of the same Act which includes its Chairman, Director General and other Members. Under Section 70 it is further provided that subject to the provisions of the Act and the rules, the Authority may by notification in official gazette and with the previous approval in writing of Government, make regulations for carrying out the purpose of the Act and in particular and without prejudice to the generality of the power, such regulations may provide including terms and conditions of the service of the officers and staff of the Authority and Agency. According to Hyderabad Development Authority Employees (General conditions of Service) Regulations 1988, the cadre means the strength of service or a part of service sanctioned as separate unit and competent authority means the Director General or any officer authorized by the Director General. Under these regulations the head of the department would be the officer declared or designated as such by the Director General and the schedule of establishment means the schedule of establishment prepared and approved under the Hyderabad Development Authority (Appointment, Promotion and Transfer) Regulation, 1988. Under these regulations the appointing authority means the authority including the Director General and any other officer as may be authorized by the authority to act as such in respect of any post or class of posts.
10. The crux of the matter is that the petitioner has challenged his alleged frequent transfers from the post of Director General, Hyderabad Development Authority though at present he is in BS-20. It is an admitted fact that the petitioner was initially appointed as Accounts Officer and before the appointment as Director General he was C.F.O. and it is also an admitted fact that when he was in grade-19, he had also served as Director General on O.P.S. basis. The learned A.G. argued that the post of Director General, Hyderabad Development Authority is a cadre post and he has also filed revised schedule of cadre posts filled by officers of APUG/DMG and Provincial Services issued by Service, General Administration and Coordination Department, Government of Sindh. In this revised Schedule at least 64 cadre posts in BS-20 have been shown at Secretariat Side while 52 BS-20 posts have been shown at field posts, which make total 127 posts.
11. Besides, producing the revised schedule, the learned A.G. also pointed out the comments filed by Secretary, Service, General Administration and Coordination Department, Government of Sindh in which it is clearly stated that the petitioner while working as Revenue Officer in KW&SB was transferred and posted as Director General, H.D.A. on OPS basis. It is further stated that on the recommendation of D.P.C. the petitioner was promoted to the post of Chief Financial Officer (BS-20) but he was not promoted against the post of Director General, H.D.A. It is further stated in the comments that amendment made in the Sindh Civil Servants Act regarding the out of turn promotion etc. have already been declared violative and ultra vires of the provisions of Constitution by the hon’ble Supreme Court of Pakistan hence the petitioner cannot claim his posting at particular place.
12. No doubt that Hyderabad Development Authority is statutory body and has had its statutory rules under which its employees are governed, but so far as the posting and transfer of Director General is concerned, his appointment is made under Section 7 of the Hyderabad Development Authority Act, 1976 by the Government on such terms and conditions as Government may determine but the post of Director General, Hyderabad Development Authority in BS-20 is a cadre post, which is clearly provided in revised schedule of field posts at Sr.No.35. By simply arguing that appointment of Director General, Hyderabad Development Authority made under Section 7 does not mean that the Government may appoint any person on a cadre post without fulfilling the requisite formalities or the other mandatory requirements. Learned counsel for the petitioner referred to the case of Zahid Akhter in which it was held that a normal period of posting of Government Servant at a station according to Punjab Government Rules of Business is 3 years. The facts and circumstances of this case are distinguishable especially in the circumstances when the present petitioner is enjoying cadre post without fulfilling the requisite requirements. He further referred to the case of Syed Mahmood Akhtar Naqvi which is commonly known as Anita Turab case in which the hon’ble Supreme Court discussed the period of tenure post and held that appointing authorities could not be allowed to exercise discretion at their whims or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. It was further held that the ordinary tenure for a posting had been specified in the law or rules then such tenure must be respected and could not be varied except for compelling reasons. Again we would like to observe that before applying the dictum of Anita Turab case, it is necessary for the petitioner to demonstrate that he is eligible for the cadre post from which his transfer has been made questionable by him through this petition. Nothing has been produced before us to substantiate that the post of Director General, Hyderabad Development Authority is not a cadre post but the appointment was tried to be protected or shielded under Section 7 of the Act on the plea that the Government has power to appoint Director General, Hyderabad Development Authority. The latest judgment of apex court reported in 2013 SCMR 1752, made it clear unequivocally that no civil servant of a non-cadre post can be transferred to hold the cadre post which is meant for recruitment through competitive process which judgment has a binding effect in terms of Article 189 of the Constitution of Pakistan 1973. It is not the case of the petitioner that he was appointed Director General, Hyderabad Development Authority through competitive process rather it is an admitted position that initially he was appointed as Accounts Officer, then he was posted as Chief Financial Officer and then Director General, Hyderabad Development Authority which means that he has not brought in through competitive process to hold the present office which is a cadre post in view of the revised schedule dated 12.3.2013. Though at the time of filing of this petition on 14.2.2013, this revised schedule was not available, however, learned A.G. robustly argued that in view of the aforesaid dictum of hon’ble Supreme Court, the petitioner is required to be repatriated to his original posting/department. The petitioner has only challenged his transfer and this is not the case that post of Director General, Hyderabad Development Authority is not a cadre post. Including the period of interim orders, the petitioner has already served as Director General, Hyderabad Development Authority for more than three years and still he is claiming the post of Director General, Hyderabad Development Authority as a vested right notwithstanding that he is not eligible to hold a cadre post.
13. As a result of above discussion, this petition is dismissed. However, it is clarified that when the Government of Sindh has taken straightforward and unambiguous standpoint that the post of Director General H.D.A is cadre post of B.P.S-20, which is meant for recruitment through competitive process, hence the new incumbent to this office will be appointed and posted accordingly.
Judge
Judge
Karachi,
Dated.25.1.2014