1. GULZAR AHMAD, J.--- The grievance of the petitioner in this constitutional petition is that the respondent CDGK is not implementing the, notification of the Government of Sindh, published in Sindh Government Gazette dated 15-11-2007 by which petitioner was promoted to the post of District Officer BS-19 MPGO, CDGK with effect from 7-7-2003. Respondents Nos.1 and 2 have filed joint written statement. Respondents 4 to 6 have filed two counter-affidavits one dated 29-5-2006 and the other, dated 13-11-2008.
2. Learned counsel for the petitioner has taken us through the record and has contended that petitioner has acquired vested right to his promoted position and then its non-implementation by the CDGK is contrary to law.
3. ' On the other hand, Mr. Manzoor Ahmed, learned counsel for CDGK has submitted that in the first place petitioner does not hold the qualification for being promoted in BS-19 MPGO, CDGK and that the very letters on the basis of which petitioner's case was moved for promotion were fake and fictitious. He has contended that the petitioner is not entitled to the relief claimed in the petition.
4. Mr. Adnan Karim, learned A.A.-G. For the Province of Sindh has contended that the notification of the Sindh Government published in the Gazette, whereby the petitioner is, shown to have been promoted in BS-19 MPGO; CDGK, is liable to be implemented.
5. ' Mr. Shabir Ahmed Awan learned counsel appearing for the private respondent No,7 has relied upon the case of Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and contended that the petitioner lacks qualification for being promoted as District Officer BS-19 in MPGO, CDGK.
6. We have considered the submissions made by learned counsel for the parties and have gone through the record. It appears that the petitioner was employed as Additional District Officer BS-18 DP&UD, CDGK. In the order, dated 13-8-2004, signed by District Officer (HRM) CDGK it was stated that under the order of competent authority to streamline the work and redress the anomaly created amongst the officers of DP&UD, MPGO, CDGK the nomenclature of two posts of Additional District Officers namely that of petitioner and Mr. Afzal Aziz has been changed as District Officer BS- 19 personal to them and both officers are allowed to continue in scale B-19 which was allowed in the years 1995 and 1998 by move-over with immediate effect. In the further order dated 27-9-2007, signed by District Officer (HRM) the earlier order, dated 13-8-2004 was reiterated and it was mentioned that it was issued with the approval of DCO and City Nazim CDGK. It appears that petitioner has filed Service Appeal No,133 of 2004 in the Sindh Service Tribunal at Karachi challenging the promotion of one Mr. Iftikhar Ali Qaimkhani. In this service appeal District Officer
(HRM) CDGK has filed counter-affidavit in which relying upon the orders, dated 13-8-2004 and 27- 9-2004 he stated that the grievance of the petitioner has been redressed and the petitioner's application may be disposed of. The Government of Sindh has also filed its written statement in the said service appeal of the petitioner wherein it was asserted that the change of nomenclature of the petitioner's employment of Additional District Officer BS-18 to that of District Officer BS-19 was without approval of competent authority that is Chief Minister and without recommendations of Departmental Promotion Committee and that the District Officer (HRM) had no authority to issue orders which are without lawful authority. The petitioner made an application for withdrawal of his service appeal on the ground that it has become infructuous and through order, dated 31-10-2006 such was done by the Service Tribunal. It further appears that on 13-10-2006 an order was issued by the Section Officer (Appeals-I) of the Services, General Administration and Coordination Department of Government of Sindh communicating that the Chief Secretary Sindh in exercise of powers under Rule 21(b) of Sindh Government Rules of Business, 1986 has been pleased to accord post facto approval to regularize the action taken by the CDGK vide order No, CDGK/D.O.
7. (HRM)1937/2004, dated 13-8-2004. The City Nazim Karachi through his letter dated 21-10-2006 brought to the attention of the Chief Secretary, Sindh the fact of two orders, dated 13-8-2004 and 27-9-2004 of District Officer (HRM) CDGK and stated that both these orders were fake/fictitious and beyond the competency of CDGK and that the regularization of petitioner's promotion to BS-19 be withdrawn. This letter was addressed by City Nazim, Karachi on the basis of the letter, dated 20-10- 2006 of Touseef Zafar, Personal Staff Officer of City Nazim, Karachi in which he has stated that while he was posted as District Officer (HRM), the orders, dated 13-8-2004 and 27-9-2004 were issued which did not bear his signatures and were forged. The Section Officer, (Appeals-I) Services, General Administration and Coordination Department of Government of Sindh responded to the letter of the City Nazim, Karachi vide letter, dated 18-11-2006, wherein it is noted that Touseef Zafar has filed his statement before Sindh Service Tribunal in Service Appeal No,133 of 2004 stating that petitioner's request has been resolved/decided and that the CDGK has also confirmed such contention through letters dated 8-3-2005 and 13-3-2006 requesting the local Government department for issuance of notification.
8. As regards competency, it was noted that though the competency to make appointment/promotion to BS-19 post lies with the Chief Minister, Sindh but such powers in the case of petitioner was exercised by Chief Secretary, Sindh under the Rule 21(b) of Sindh Government Rules of Business, 1986 on the proposal of Administrative Department dated 27-5- 2006 towards the post facto approval which was accorded vide letter, dated 13-10-2006. It was noted that there was no justification for revival of decision and request was made for implementation of the decision, dated 13-10-2006. A Notification No,SO(G)HTP/Gen/2-194/ 2007, dated 25-5-2007 was issued by the Secretary, Government of Sindh Local Government Katchi Abadi and Spatial Development Department notifying the post facto approval to regularize the action taken by CDGK through its order, dated 13-8-2004 of changing the nomenclature of the petitioner as District Officer BS-19 since 1995 by move-over w.e.f, 13-8-2004. Then there is notification No,S0(APLSDSGA&D/4-7/2006 published in the Sindh Government Gazette dated 15-11- 2007 stating that petitioner was promoted to the post of District Officer BS-19, MPGO, CDGK w.e.f, 7- 7-2003.
9. ' As stated above, though Touseef Zafar has stated in his letter dated 20-10-2006 that the two orders dated 13-6-2004 and 27-9-2004 bear his forged signatures but he does not say in this letter that these very two orders were relied upon by him in his counter-affidavit in the service appeal of the petitioner, wherein he has requested the Tribunal for disposal of the petitioner's application as his grievance stood redressed. Obviously, there seems to be some misgivings regarding the issuance of two orders by Touseef Zafar and the same does not seem to have been approved by the Government of Sindh. It was not argued before us by any of the counsel that post facto approval given by the Chief Secretary under Rule 21(b) of Sindh Government Rules of Business, 1986 was not competently given and, therefore, we do not wish to enter upon the question of competency of post facto approval so granted by the Chief Secretary, Sindh.
10. ' What we note from the record is that the petitioner was granted the post of District Officer BS-19 by changing the nomenclature of Additional District Officer BS-18 by move-over with effect from 1995. Move-over is not a promotion but is merely a move-over to the next higher pay scale of an employee who has completed service of requisite number of years from which move-over is allowed. The respondent CDGK in its first counter-affidavit has stated that the policy of move-over was discontinued by introduction of Basic Pay Scale, 2001. Though the Basic Pay Scale, 2001 scheme or policy, whatever it may be, has not been filed before us what we see is that despite such policy/scheme, the petitioner was granted move-over to BS-19 w.e.f, 1995 through order, dated 13- 8-2004 of CDGK which was reiterated successively and was also appears to have been filed by the CDGK with its counter-affidavit in the Service Tribunal in the service appeal of the petitioner and it was claimed in the said counter-affidavit that petitioner's grievance in the service appeal stood redressed. The Chief Secretary, Sindh in exercise of powers under Rule 21(b) of Sindh Government Rules of Business, 1986 also accorded post facto approval to regularize the action taken by the CDGK vide its order, dated 13-8-2004. Such post facto approval was communicated through order, dated 13-10-2006. The petitioner sought withdrawal of his service appeal which was done on 31-10- 2006. To the extent of case of allowing of move-over to the petitioner to scale BS-19 by the CDGK itself in 2004 and its post facto approval accorded by the Chief Secretary, Sindh through order, dated 13-10-2006, there is no material before the Court to determine that such move-over could not have been granted to the petitioner.
11. ' We may, however, note and that too without prejudice to what we have said above, that it was for the first time the City Nazim, Karachi through his letter, dated 21-10-2006 informed the Chief Secretary, Sindh about the fact that the orders, dated 13-8-2004 and 27-9-2004, issued by Touseef Zafar while he was posted as. District Officer (HRM), were fake and fictitious. Such assertion of the City Nazim, Karachi was not accepted by the Government of Sindh who through its letter, dated 18- 11-2006 relying upon the according of post facto approval of the Chief Secretary, Sindh conveyed that same may be implemented. It does not appear from the record that any enquiry was conducted by the CDGK to ascertain about the fact whether the orders dated 13-8-2004 and 27-9- 2004 were fake and fictitious. It only seems to be an ipse dixit of the worthy City Nazim based on an inchoate assertion of Touseef Zafar contained in his letter dated 20-10-2006. No action seems to have been taken against Touseef Zafar. To the extent of move-over allowed to the petitioner to BS- 19 we are not impressed by the submission of learned counsel for CDGK.
12. ' As regards the question of qualification, we may note that fulfilling of requirement of qualification will become relevant when regular promotion is granted which has to be processed by a regular Departmental Promotion Committee. The Sindh Government has issued notification, dated 25-5- 2007 Annexure "P-31" to the petition, by which the effective date of allowing move-over to the petitioner to BS-19 appears .To have been changed to that of 13-8-2004. By further notification published in Sindh Government Gazette dated 15-11-2007 Annexure "P-32" to the petition, the petitioner seems to have been promoted to the post of District Officer BS-19 MPGO, CDGK with effect from 7-7-2003. This notification is supported by the Sindh Government as the learned A.A.-G., Sindh has stated that it be implemented. There is not a word in any of the documents filed in the petition that this promotion was granted to the petitioner by the process of regular Departmental Promotion Committee and that such promotion has also been accorded approval by the competent authority who appears to be Chief Minister, Sindh under Rule 21(b) of the Sindh Government Rules of Business, 1986. The notification published in the Gazette, as noted above, is very intriguing as there seems to be no material on record to support the same.
13. Despite above reservation, which we had in our mind at the time of hearing of this matter, through a short order, dated 3-4-2009, we had allowed this petition to the extent of promotion granted to the petitioner through notification published in Sindh Government Gazette, dated,' 15-11-2007 for the reason that it was not impugned before us rather its implementation was sought. Above are the reasons for the said short order.
14. ' We may note that though we have allowed this petition as noted above but we also hold that Sindh Government should undertake an enquiry about propriety of move-over and subsequent promotion granted to the petitioner reflected from the notification published in Sindh Government Gazette dated 15-11-2007. If upon the enquiry it is found .That the move-over so also promotion granted to the petitioner, as noted above, was not in accordance with law, the competent authority is free to recall the same and this judgment will not be a bar in doing so, provided it is done in accordance with law. If decision of competent authority after enquiry goes against petitioner, the petitioner may avail such remedy as may be permissible to him by law.