' SHAHID ANWAR BAJWA, J.--- With the consent of learned counsel these writ petitions were heard and decided at Katcha Peshi. These are writ petitions in the nature of quo warranto challenging promotion of respondent No,3 to BPS-19 in the Agricultural Engineering and Water Management Sindh and consequent grant of seniority to him.
2. The facts in brief are that respondent No,3 who holds qualification of B.A. Was working in BS-18 as Deputy Director (HQ) Administration. Vide notification September 27, 2002 the appellant was posted as Director (Admn./Accounts) a BS-19 post and was "allowed BS-19" against re-designated /upgraded post with effect from 1-7-2002 "till further orders". In consequence of such a notification subsequently seniority list was issued and the respondent No,3 was shown in the seniority list of employees in BS-19.
3. Mr. M. M. Aqil Awan, learned counsel for the petitioner in Constitutional Petition No,D-2039 of 2008 made the following submissions:---
(1) That under notification dated June 2, 2007 for Director Administration/Accounts the following qualifications are prescribed:--- "Possessing Degree of M.A. (Economics) or M.Com. Or M.B.A having at least twelve years experience in BPS-17 and above of such length of service as may be prescribed by the Government."
' Learned counsel submitted that respondent No,3 is only a B.A and did not possess required qualification for the post of Director Administration/Accounts.
(2) Learned counsel submitted that even if the post was upgraded the respondent No,3 could not have been promoted without due procedure as prescribed under the relevant rules made under the Civil Servants Act.
(3) Respondent No,3 was never promoted to BS-19. Learned counsel relied upon Miss Farooq Sadiq v. Secretary Health and others 1994 PLC (C.S.) 647=PLD 1994 SC 269 and Aijaz Mustafa Samtio, Advocate v. Government of Sindh and others, 2002 PLC (C.S.) 117.
4. Mr. Khalid Jawaid Khan, learned counsel for the petitioner in Constitutional Petition No,D-2300 of 2008 adopted arguments of Mr. M.M. Aqil Awan and further submitted that in cases of writs in .The nature of quo warranto principle and bar of lathes is never attracted. Learned counsel relied upon Syed Arshad Hussain v. Government of Sindh and 38 others PLD 1982 Kar.
604. Learned counsel further submitted that if very appointment of an employee is illegal it is not required that a show-cause notice be issued to him before recalling such an illegal order. In this regard learned counsel relied upon Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another, PLD 2010 SC 483
5. Mr. Muhammad Nawaz Shaikh, learned, counsel for the respondent No,3 made the following submissions:---
(1) Thai notification dated September 27, 2002 is a notification of promotion and therefore the appellant was promoted. Learned counsel relied upon Abdul Majid Shaikh v. (1) Mushaffe Ahmed, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and (2) The Secretary, Ministry of Defence, Government of Pakistan, Karachi, 1965 PLC 186 to elaborate as to what is meant by "till further orders".
(2) Learned counsel further referred to notification dated January 26, 2009 by which notification the words "is allowed BS-19" were deleted from notification dated 27-9-2002. Learned counsel submitted that it was immediately followed by notification dated March 28; 2009 by which notification dated January 26, 2009 was withdrawn and thus the words "is allowed BS-19" stood reinserted in notification dated 27-9-2002.
(3) Learned counsel submitted that seniority list has been issued and such seniority list could always be challenged by the petitioners but not before this Court. It could have been challenged before the Federal Service Tribunal and jurisdiction of this Court in terms of Article 212 of the Constitution was barred.
(4) Regarding notification dated June 2, 2007 which prescribes qualifications learned counsel submitted that notification is prospective and cannot be given retrospective effect.
(5) Learned counsel further submitted that the High Court cannot act as a Selection Authority for posting to various posts.
(6) Learned counsel also relied upon Ghulam Muhammad v. Province of Sindh through Chief Secretary and 2 others, 2009 PLC (C.S.) 120 to contend that what cannot be directly done could not be done indirectly.
6. Learned Assistant Advocate-General supported the arguments of Mr. Aqil Awan and referred to paras.6 and 8 of the comments filed on behalf of Services and General Administration Department.
The said paras are as follows:--- "(6) Respondent No,4 was holding post of Deputy Director (HQ/Admn.). Later this post was upgraded to BPS-19 and redesignated as Director (Admn. And Acctts.) BPS-19 and no requirement rules were framed for this post, therefore, respondent No,4 was posted against the upgraded post in light of the explanatory note attached with Rule 8 of Sindh Civil Servants (APT) Rules, 1974 which reads as under:- "Whereas class of posts not being a fixed number, or percentage of posts in such class are upgraded as a result of revision of pay scales, the incumbents holding the posts immediately before the upgrading shall continue in the upgraded posts and their continuance shall not be deemed as promotion for the purpose of this part."
' However, it was erroneously added in the notification of posting him against the said upgraded post that he is allowed BPS-19; which mistake has now been rectified by deleting the words "is allowed BS-19" vide notification dated 26-1-2009 (Annexure-I).
"(8) Recruitment rules for the upgraded post of Director (Admn. And Acctts.) BPS-19 were framed in the year 2007 whereas respondent No,4 was erroneously allowed BPS-19 against the said upgraded post in the year 2002 by S&GAD. However, such error has been rectified by issuing another notification as stated in para 6 above."
7. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law.
8. The entire case turns on the question whether the respondent No,3 was promoted vide order dated September 27, 2002 or not. The entire order is produced below:-- "Consequent upon up gradation/redesignation of the post of Deputy Director (HQ/Admn.) BS-18, as Director (Admn./Actt.) BS-19, Agriculture, Engineering & Water Management Sindh, the incumbent Mr. Gul Hassan Sand, Deputy Director (HQ/Admn.) BS-18, is posted as Director (Admn./Actts.) BS-19, Agriculture, Engineering and Water Management is allowed, BS-19 against redesignated/upgraded post with effect from 1-7-2002 till further orders."
9. A reading of the above order indicates that respondent No,3 who was serving in BS-18 was "Posted" on a post of BS-19 was "allowed" B BS-19 against re-designated/upgraded post "till further orders". It was contended by Mr. Nawaz Shaikh, that the notification amounted to promotion and it was contended by the petitioner that it did not. The subject of promotion is regulated by section 9 of the Sindh Civil Servants Act, 1973. Said section is in the following words:- "9. Promotion: (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion of the service or cadre to which the belongs."
10. In exercise of powers conferred by section 26 of the Sindh Civil Servants Act, 1973 the Government of Sindh made the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974. Rule 7 sub-rules (2) and (3) of these rules provide as under:--- "(2) Appointments by promotion or transfer to posts in Basic Scale 3 to Basic Scale 18 without special pay other than the posts for which Provincial Selection Board has been constituted under rule 6-A shall be made on the recommendations of the appropriate Departmental Promotion Committee.
(3) Appointment by promotion and transfer to posts in Basic Scale 18 with special pay, and above and the posts notified under Rule 6-A, shall be made on the recommendations of the appropriate Provincial Selection Board."
11. A reading of the above rules indicates that promotion in BS-3 to 18 without special pay can be made only on the recommendations of the Departmental Selection Committee and promotions in Basic Scale 18 with special pay and posts above Basic Scale 18 can be made only on the recommendations of the appropriate Provincial Selection Board. Since the post to which the respondent No,3 is claimed to have been promoted in BS-19 therefore under Rule 7(3) of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 it was incumbent essentially and inescapable perquisite that recommendations after due evaluation be made by the appropriate Selection Board. It is no one's case that before issuing the notification dated September 27, 2002 any Provincial Selection Board assessment took place. Obviously therefore the respondent No,3 could not have been promoted to BS-19 merely by a posting order.
12. Moreover, what is stated in the notification is that appellant was "allowed BS-19". This word "allowed" does not find place anywhere in the Civil Servants Act or the rules made thereunder. It must also be seen that even this "allowing" is 'till further orders'. Promotion is never till further orders.
Either some body is promoted or some body is not promoted. It is only posting etc. Which are made till further orders.
13. Mr. Nawaz Shaikh referred to the case of Abdul Majid Sheikh (supra). In the reported case, in respect of words "till further orders" following was observed by the Supreme Court:--- "The question is whether by this notification the condition of notice to which according to the letter of the Government "his service in the Pakistan Navy" was to be subject has been abrogated. I do not see any ground for holding that it has been abrogated. When it is said that a person holds an appointment till further orders it only means that he holds it till orders are passed terminating his services. These words cannot be interpreted as carrying a necessary implication that all conditions relating to his tenure of service are withdrawn and henceforth he will be dismissed or removed without any opportunity to show cause. Even in the notification relating to his appointment as Senior Scientific Officer the words "until further orders" were used, but the condition of notice was not thereby waived. In fact "until further orders" are words, which when used without conjunction with any condition of service may be of stronger import than a liability to termination of service by notice and may imply that the employment can be terminated at any time. These words are generally used in connection with officiating employments and in such cases, according to the view which this Court has been taking, the officiating appointment can be terminated at the will of the appointing authority."
' The question in the reported case was that a person who was employed as temporary Senior Scientific Officer was posted as Temporary Senior Scientific Officer Incharge and such posting was withdrawn and the Supreme Court observed that it does not mean that the employment can be terminated but officiating appointment can be terminated at the will of the appointing authority.
The case if at all supports the case of the petitioner rather than stand taken by Mr. Nawaz Shaikh.
Although learned counsel for the petitioner relied upon Miss Farooq Sadiq's case (supra). It was a case relating to existence or non-existence of qualification for appointment and is not a case of promotion. Same is the position of Aijaz Mustafa Samtio's case (supra). Therefore, both these cases are not relevant.
14. Mr. Nawaz Shaikh also relied upon Mir Alam Jan v. Dr. Muhammad Shahzad and others, 2008 SCMR 960, wherein the honourable Supreme Court held that the High Court is not expected to perform the functions of a Selection Authority in the service matters. The facts of the case were that in order to fill vacant post of Senior Registrar (Urology) in a hospital selection was made by Selection Committee and consequently appellant was appointed. Respondent No,1 being next on the merit list filed a writ petition in the Peshawar High Court which set aside the appointment of the appellant. The Supreme Court observed that since the appellant fulfilled threshold qualification High Court could not have substituted its view adopted by the Selection Committee. Mr. Nawaz Shaikh also relied upon Ghulam Muhammad's case (supra). It was a case where the petitioner had challenged transfer of the respondent and the High Court held that these are the matters of the administrative nature.
15. There is no cavil with any of the proposition laid down in the above cited case-law. In the present case petitioners have not challenged posting of the respondent. What they have challenged is that the respondent could not be given a permanent charge of a post of BS-19 and could not have allowed BS-19 (which word 'allowed' we have already held above, does not amount to promotion) treated as promotion and follow it up with seniority list of BS-19 and include name of the petitioner therein. The petitioner has never been promoted because no Selection Board has ever recommended him.
16. Learned counsel for the petitioners referred to notification dated June 2, 2007 which prescribes qualification for appointment to the post which was occupied by respondent No,3. The qualification prescribed is M.A. (Economics) or M.Com. Or M.B.A. With certain experience. Admittedly the petitioner is only B.A. And therefore does not possess any of the prescribed qualifications. Mr. Nawaz Shaikh was perfectly correct in arguing that the rules were made in 2007 and therefore are prospective in nature and cannot be given retrospective effect. But the position in this case is that the petitioner has never been promoted to BS-19. Since he has never been promoted it is not available to the departmental authorities, now to promote him in violation of notification dated June 2, 2007.
17. One of the objections of the learned counsel was that it is a question relating to terms and conditions of employment of Civil Servant and therefore writ petition is not maintainable. Mr. Khalid Jawaid Khan and Mr. M.M. Aqil Awan have correctly pointed out that the petitioners have not claimed any relief for themselves and the writ is in the nature of quo warranto . It is settled law that writ in the nature of quo-warranto is le not barred by Article 212 of the Constitution. If any reference in this regard is made one may refer to Abdul Bashir and 9 others v. Government of Balochistan, through Chief Secretary and 3 others, 2001 PLC (C.S.) 771.
18. Result of the above discussion is that it is held that the notification dated September 27, 2002 did not promote, and in law it could not have promoted, respondent No,3 to BS-19. Therefore, respondent No,3 continues to be an employee in BS-18. It is expected of the Provincial Government to post respondent No,3 on a post of BS-18. It will however be available to the Provincial Government to consider and decide the matter regarding promotion of respondent No,3 in accordance with the law and the rules.
' These Constitutional Petitions are disposed of in the above terms.