' ARSHAD NOOR KHAN, J.--- By this judgment we intend to dispose of C.P.No,D-2024 of 2008, C.P.No,D-128 of 2008 C.P.No,D-2329 of 2008, C.P.No,D-2000 of 2008, C.P.No,D-2106 of 2008 and C.P.No,D-2126 of 2008 as the facts and law involved in all the Constitutional petitions are identical to each other.
2. The facts leading to file the present petitions, in brief, are that the petitioners have been appointed as Deputy District Attorneys (D.D.As.) in various districts and are performing their duties as D.D.As. In BPS-18. During the length of their service, the Government promulgated the Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2006 hereinafter shall be referred to as `Ordinance, 2006' whereby Prosecutor-General, Additional Prosecutor-General, District Public Prosecutors and Deputy District Public Prosecutors had to be appointed and preference was given by the Government to all those District Attorneys (D.As.) and D.D.As. Who were already performing their duties and without change of terms and conditions of their duties they were given one time option to opt the new assignment under the aforesaid Ordinance, 2006.
By virtue of provisions of Ordinance, 2006, the Government also got published Sindh Prosecutors (Appointment and Conditions of Service) Rules, 2006 hereinafter shall be referred to as 'Rules, 2006' in Sindh Gazette dated November 7, 2006. In pursuance of Ordinance, 2006 the option, as discussed above, was given to the D.As. And D.D.As. Performing their duties to opt the new assignment and en receipt of the option from them, the respondents constituted Selection Committee comprising of Administrative Secretary as Chairman and its members namely Prosecutor-General Sindh, the nominee of Law Department, the nominee of S&GAD & CD (Services)
Department and Additional Advocate General who interviewed the candidates who opted to join the prosecution and the Selection Committee after conducting the interviews, declared the list of the successful candidates wherein the names of the present petitioners were not included, hence they approached to this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. The notices to the respondents have been served who also filed their comments admitting therein most of the facts contained in the petition and have admitted that one time option was given to those who were already performing their duties as D.As. And D.D.As. And on receipt of their option on the prescribed form, the Selection Committee conducted their interviews and on the recommendation of the Selection Committee, various D.As. And D.D.As. Were appointed as District Public Prosecutor (D.P.P.) and Deputy District Public Prosecutor (D.D.P.P.), and since the petitioners were not recommended by the Selection Committee, therefore they were not appointed.
4. 'We have heard Mr. Muhammad Anwar Tariq, Mr. Habib-ur- Rehman Jiskani, Mr. Samiullah and Mr. Wasique A. Kehr, Advocates on behalf of the petitioners and Mr. Abdul Fatah Malik, Additional Advocate General for the respondents.
5. Mr. Muhammad Anwar Tariq, learned counsel for the petitioner, vehemently contended that by virtue of proviso to section 8 of the Ordinance, 2006, the respondents after receipt of the option from the D.As. And D.D.As., were not justified to refuse the appointment of the petitioners and the petitioners were not required to appear before the selection committee as they were already working as D.As. And D.D.As. At the time when option was given. He further contended that by virtue of section 21 of the Ordinance, 2006, all the Notifications issued by the Government have been protected and while arguing the same, the learned counsel for the petitioners heavily relied upon Notification dated 30-8-2006 issued by the Criminal Prosecution Service Department, Government of Sindh whereby the D.As. And D.D.As. Who were already performing their duties as Public Prosecutors were put in charge of the prosecution in respect of their districts.
6. Mr. Abdul Fatah Malik, learned Additional Advocate General, vehemently controverted the submissions advanced by the learned counsel for the petitioners and has contended that by virtue of section 8 of the Ordinance, 2006, the option was given to the D.As. And D.D.As. Who were already performing their duties who submitted their option on the prescribed forms which option was conditional and the petitioners appeared before the selection committee who were declared unsuccessful by the selection committee, therefore they were not appointed or absorbed as D.P.Ps.
And D.D.P.Ps., hence the petition being superfluous, is liable to be dismissed.
7. We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.
8. It is not disputed by the either parties that the Ordinance, 2006 was promulgated on 29th July, 2006 and the rules to the Ordinance, 2006 were promulgated on 7th November, 2006. The Ordinance,. 2006 therefore provides the appointment of Prosecutor-General, Additional Prosecutor-General, Deputy Prosecutor-General, District Public Prosecutor as well as Deputy District Public Prosecutor and Assistant Public Prosecutor whereas Rules, 2006 provides mechanism for appointment of D.P.P. And D.D.P.P. On the contract basis and after promulgation of Ordinance, 2006 since no District Public Prosecutor or Deputy District Public Prosecutors were available to prosecute the criminal cases, therefore the Government vide Notification dated 30-8-2006 appointed all the District Attorneys and Deputy District Attorneys as Public Prosecutor in the local areas wherein they were posted or transferred from time to time to conduct prosecution on behalf of the Government with effect from the Sindh Criminal Prosecution Service (Constitution, Functions and Powers)
Ordinance, 2006 came into force till the time the service under the Ordinance became functional.
The District Attorneys notified as Public Prosecutors were allowed to act as the officer in charge of the prosecution in the district in which they were posted for the purpose of subsection 2 of section 8 of the Ordinance, 2006. It is further provided in the Notification dated 30-8-2006 that this interim arrangement would not confer any right upon the District Attorneys and Deputy District Attorneys for their ipso facto absorption/induction in the Sindh Public Services. It is therefore evident that since after promulgation of the Ordinance, 2006, the D.P.Ps. And D.D.P.Ps. Were not appointed, there fort , those District Attorneys and Deputy District Attorneys who were working in the respective Districts were appointed as Public Prosecutor to conduct the criminal cases, which seems to be stop gap arrangement till the appointment of D. P. Ps. And D.D. P. Ps.
9. The appointment of District Public Prosecutors and Deputy District Public Prosecutors is provided under section 8 of the Ordinance, 2006 and section 8 and proviso attached to section 8, ibid, also provides that Government shall by a special order, invite one time options from the person already performing functions of prosecutors on regular basis in the province and may induct them in the service upon such terms and conditions which are not detrimental to their existing terms and conditions of service. By these proviso to section 8, (ibid), one time option was allowed to the prosecutors who were already functioning on regular basis, but as discussed above, at the time of promulgation of the Ordinance, 2006 the prosecutors were not appointed by the Government, therefore the District Attorneys and Deputy District Attorneys were temporarily assigned the charge of Prosecutors vide Notification dated 30-6-2006.
10. The appointment of D.As. And' D.D.As. As D.P.Ps. And D.D.P.Ps. Was subject to the scrutiny by a selection committee to be formed by the Government under rule 5 of the rules, 2006 and the said selection committee was formed by the Government, and after formation of the Selection Committee, the candidates for the post of D.P.P. And D.D.P.P. Were appeared before the selection committee, who after their interview selected the D.P.Ps. And D.D.P.Ps. And admittedly the petitioners who also appeared before the selection committee were not selected by the Committee, therefore, petitioners were not appointed as D.P.P. And D.D.P.P. Ordinance, 2006 and rule 2006 provide a full mechanism regarding appointment of Prosecutors and the petitioners have not challenged the formation of the selection committee constituted by the Government.
11. Even otherwise, in case, if the case of the petitioners assume to fall under section 8 of the Ordinance, 2006 then too they were allowed one time option by the Government for their absorption in the Prosecution Department and the pro forma and option submitted by the petitioners were conditional subject to their appearance before the selection committee and the decision of the selection committee will be binding on them and they will abide by the decision of the selection committee. The option submitted by the petitioners, is reproduced herein below for the sake of convenience:-- "Declaration.--- I hereby affirm on oath that the information given above is true and correct to my knowledge and I shall be personally responsible for any mistakes or misinformation, and the Sindh Criminal Prosecution Service Department will be free to proceed against me under the Sindh Removal from Service Ordinance for any misstatement on my part in concealing any information pertaining to the above. Further the decision of the Selection Committee shall be final and acceptable to me.
' I hereby give my option to join the Sindh Criminal Prosecution Service Department as provided in section 8(4) of the Sindh Criminal Prosecution Service (Constitution, Powers and Functions)
Ordinance, 2007 and letter No, dated the Criminal Prosecution Service Department."
12. On this score also, the petitioners have no case for the reasons that in pursuance of their option they appeared before the Selection Committee and were interviewed but they were not declared successful.
13. After examining the whole material available on record, we are of the firm opinion that the petitioners were not selected by the selection committee after their interview, therefore, their petitions merits no consideration and are hereby dismissed in limine.
(Sd.) Arshad Noor Khan, J.
' KHILJI ARIF HUSSAIN, J.--- While agreeing with the conclusion, I would like to give my own reason for it. The petitioners were appointed as Deputy District Attorneys as regular employees to act as Government Pleader and were posted at different places in Province of -Sindh in order to establish an independent effective and efficient service for prosecution of criminal cases, respondent No,1 promulgated Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2006, herein referred to as "Ordinance, 2006". In terms of section 8(4), Ordinance, 2006 the District Public Prosecutor, Deputy District Prosecutor etc. On regular basis can be appointed only on the recommendation of Sindh Public Service Commission. However, an exception was provided that persons already performing functions of Prosecutor on regular basis in the Province the Sindh, Government shall by special order, invite one time option from them and may induct them in the service upon such terms and conditions which are not detrimental to the terms and conditions of their services.
' The petitioners were appointed as Deputy District Attorneys on regular basis as Government Pleaders to conduct civil and criminal cases under Administrative Control of Ministry of Law. On the date when Ordinance, 2006 was promulgated benefit of proviso to subsection (4) of section 8, Ordinance, 2006 was available only to a person performing function of the. Prosecutor on regular basis in the Province of Sindh on the date of promulgation of the Ordinance i,e, 29th July, 2006.
' Admittedly, the petitioners on the date when the Ordinance XIX of 2006 promulgated were not performing function of prosecutors on regular basis in the Province of Sindh and as such were not entitled for the benefit under the proviso.
' Now .I would like to examine section 8(4) of Ordinance, 2006 assuming that petitioners were performing functions of prosecutor on regular basis.
' The proviso to subsection (4) of section 8 of Ordinance, 2006 is in two parts and I would like to reproduce it:---
(i) that the Government shall, by a special order, invite one time option from the persons already performing functions of prosecutors on regular basis in the Province and
(ii) may induct them in the service upon such terms and conditions which are not detrimental to their existing terms and conditions of service.
' Admittedly one time offer was given to the petitioners.
From close reading of the proviso, it appears that in first part of the proviso which relates to invite one time option was mandatory whereas second part of the proviso is not mandatory and discretion has been given to the Government that after acceptance of one time. Option by the person already performing function of the prosecutor, Government may induct them in service upon such terms and conditions which are not detrimental to existing terms and conditions of their services. Legislature used word "shall" in the first part of the proviso which provided for one time option and use of word "may" in second part of the proviso which relates to the induction in service.
No universal rule or absolute test exists for determining whether provision of law is mandatory or directory and it is to be determined according to intention of the Legislature and the language which has been used. Where statute required thing to be done in a particular way it must be done by the authority in the manner as prescribed by statute as departure from the rules would invalid thing done in the manner other than prescribed by the rules.
The object of the Ordinance, 2006 was to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecution independence in criminal justice system.
Except power of appointment of Prosecutor-General vests with the Government, for a fixed period, the District Public Prosecutor, Additional Prosecutor-General and Deputy Prosecutor-General can be appointed on regular basis only on the recommendation of Sindh Public Service Commission, to give them independent, and to induct competent person on merits in Criminal Prosecution Service.
By proviso of section 8(4) of Ordinance exception has been given that a person already performing function of the prosecutor on regular basis shall be given one time option and after taking their option the Government may induct them in service. Phrase "shall" used in first part and "may" used in second part leave no doubt in mind that intention of Legislature was that only those persons, out of the prosecutor already functioning, be appointed without undergoing Sindh Public Service examination who meet minimum requirement of merits.
' In the case of Mahaluxmi Rice Mills v. State of U.P. AIR 1999 SC 147 Honourable Supreme Court of India while dealing the question of using word "shall" and "may" in one section held:--- "It is significant to note that the word used for the seller to realize market fee from his purchaser "may" while the word used as for the seller to pay the market fee to the Committee is "shall".
Employment of the said two monosyllables of great jurisprudential import in the same clause dealing with two rights regarding the same burden must have two different imports. The legislative intendment can easily be discerned from the frame of the sub-clause that what is conferred on the seller is only an option to collect market fee from the purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realized it from the purchaser or not."
Sindh Prosecutors (Appointment and Conditions of Service) Rules framed on 4-11-2006 in exercise of powers by subsection (1) of section 16 of the Ordinance, 2006 only relates to appointment of Additional Prosecutor-General, Deputy Prosecutor-General etc. On contract basis for a period not more than three years on the recommendation of the Selection Committee has no nexus with the proviso of section 8(4) of the Ordinance, 2006 and appointment of Prosecutors on regular basis.
The petitioners were given one time option as provided under the first part of the proviso of subsection (4) of section 8 and after interview by a Board constituted names of Persons who meet the minimum requirement to act as a Prosecutor were forwarded for inducting in the Prosecution Department.
Petitioners' names were not recommended by the Selection Committee constituted by the respondent and as observed hereinabove that second part of the proviso gave discretion to Government to induct a person in the Prosecution Department, the respondents have rightly informed them that they cannot be inducted in Prosecution Department and will perform their duties as District Attorneys on which they were initially inducted. Although in the memo. Of petition, objection about the validity of Ordinance, 2006 has been taken, but learned Advocate for the petitioners not pressed the same.
' For the foregoing reasons, petitioners are not entitled for any relief and accordingly listed petitions are dismissed in limine.
(Sd.) Khilji Arif Hussain, J.