' SHAUKAT UMAR PIRZADA, J.--- This order shall dispose of above title writ petition as well as Writ Petition No,597 of 2010, as both are involving the same issue.
2. Brief facts, giving rise to these writ petitions are that petitioners are employees of the Collectorate of Customs, Sales Tax and Federal Excise, Multan and were performing their duties against various ministerial posts. Certain posts of Inspector in Collectorate of Customs were lying vacant since 1995. As per the criteria contained in S.R.O. No,57(I)/77, the posts of Inspectors are to be filled in on the basis of 50% by promotion of ministerial staff and 50% by direct recruitment. This S.R.O. Further discloses that in exceptional circumstances where the exigency of public service so demands the vacancy meant for direct recruitment may be filled in by transfer. As pointed out above, 30 posts of inspectors were lying vacant in Collectorate of Customs, Multan in the direct recruitment quota, which could not be filled in due to ban imposed by the Government on direct recruitment. In view of the exigency of service in 2003, respondent No,1/Federal Board of Revenue issued circular dated 11-11-2003 to all the Collectorates of Customs and Sales Tax allowing them to fill the post of inspectors against available vacancy of direct quota from the qualified ministerial staff through promotion on acting charge basis subject to the condition that promotion would be withdrawn or reverted in case of availability of direct recruits. In pursuance of the said direction/letter dated 11-11-2003, respondent No,3/Collectorate of Customs, Multan constituted a Departmental Promotion Committee, which conducted examination/test and interviews of the eligible employees and promoted the successful staff against the said posts of inspectors. The petitioners were promoted against the posts of inspector through the said process vide letter dated 18-12-2003 and 28-5-2004. The petitioners are performing their duties since their promotion to the entire satisfaction of their superiors. But respondent No,1/Federal Board of Revenue started procuring information regarding vacancy positions of the post of inspector vide letter dated 23-11- 2009 issued to respondent No,3 and also invited applications for filling the same through direct recruitment by proclamation published in the newspaper on 26-11-2009 and 5-12-2009. Meanwhile, respondent No,3 vide letter dated 26-11-2009 furnished the exact vacancy position of the posts of inspector to respondent No,
1. However, as per the list prepared by respondent No,1, 35 vacancies have been shown in Collectorate of Customs, Multan, which the respondents want to fill in through direct recruitment, hence, this writ petition.
3. Report and parawise comments have been filed by the respondents, wherein they objected to the maintainability of the instant writ petitions and have claimed bar of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as also under Rule 8-b (6 & 7) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It has been averred that the writ petition is premature, as no reversion order has so far been issued nor anyone has been selected against the post of Inspector through direct recruitment. It has been stated that some ministerial officials of this Collectorate, who had qualified the promotion examination for the posts of Inspectors, were waiting for their promotion, which could not be made due to non-availability of vacancies in promotion quota. As there was shortage of Inspectors in 2003 and ban on fresh/direct recruitment was imposed by the Federal Government, therefore, respondent No,1 allowed promotion to all the qualified ministerial staff against the vacancies meant for direct quota.
However, the petitioners were promoted on acting charge basis and their appointment letters were containing the condition of reversion in case of availability of direct recruits. Now, ban has been lifted and 32 vacancies of direct quota are available. As the officials, who are holding the said vacancies on acting charge basis and their promotions have not been regularized due to non- availability of any vacancy in the promotion quota cannot hold the same for indefinite period, therefore, respondent No,1 has advertised all the vacancies of Inspectors of direct quota on 26-11- 2009. It has been further averred that the petitioners are free to participate and compete in open recruitment process, if they possess the requisite qualification/age etc.
4. Learned counsel for the petitioners contends that the petitioners are working against the post of Inspectors since 2003 and 2004 and meanwhile various opportunities of promotion in ministerial side were arisen, which were given up by them due to their present position/posting. Moreover, the posts, which they have left at the time of promotion arc no more available, as the same have been occupied by the other ministerial staff, therefore, reversion of the petitioners would left them nowhere and would ruin their career. It has been further contended that petitioners are drawing their salaries against the posts of Inspectors, therefore, the same could not be termed as vacant and that recently the Government of Pakistan and the Provincial Governments have regularized the services of those employees who were working on ad hock/acting charge and current basis and were appointed after successfully going through the examination test/interview and have rendered services for considerable time. But the instant process initiated by the respondents is against the said policy of the Federal and Provincial Governments, therefore, the writ petitions be allowed. Learned counsel for the petitioners has relied upon the case-law cited as MUHAMMAD ANIS AND OTHERS V. ABDUL, HASEEB AND OTHERS (PLD 1994 Supreme Court 539), JAFAR. ALI YOUSAFZAI V. ISLAMIC REPUBLIC OF PAKISTAN AND ANOTHER (PLD 1970 Quetta 115), DR. NIGHAT BIBI, PHYSICIAN, GENERAL MEDICINE, PIMS, ISLAMABAD V. SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD AND OTHERS (2009 SCMR 775), SADAQAT ALI V. GOVERNMENT OF PUNJAB THROUGH CHIEF SECRETARY AND 3 OTHERS (2008 PLC (C.S.) 1047), PROVINCE OF PUNJAB through Secretary,Agriculture, Government of Punjab and others V. ZULFIQAR ALI (2006 SCMR 678), SECRETARY, REVENUE DIVISION AND OTHERS V. MUHAMMAD SALEEM (2008 SCMR 948), MRS. ROBINA ASLAM NOORANI V. DISTRICT EDUCATION OFFICER (EE-W) PAKISTAN (2008 PLC (C.S.) 682) and WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore V. ABBAS ALI MALANO AND ANOTHER (2004 SCMR 630).
5. Learned counsel for the respondents has controverted the contentions of learned counsel for the petitioners and stated that the instant writ petition is not maintainable due to bar of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as also under Rule 8- b(6&7) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It has been averred that writ petition is premature, as no reversion orders have so far been issued nor any regular selection for the post of Inspector through direct recruitment has been made. It has been stated that some ministerial officials of this Collectorate, who had qualified the promotion examination for the posts of Inspectors, were waiting for their promotion, which could not be made due to non- availability of vacancies in promotion quota. As there was shortage of Inspectors in 2003 and ban on fresh/direct recruitment was imposed by the Federal Government, therefore, respondent No,1 allowed promotion to all the qualified ministerial officials against the vacancies meant for direct quota. However, the petitioners were promoted on acting charge basis and their appointment letters were containing the condition of reversion in case of availability of direct recruits. Now, the ban has been lifted and 32 vacancies of direct quota are available. As the officials, who are holding the said vacancies are working on acting charge basis and their promotions have not been regularized due to non-availability of any vacancy in the promotion quota, therefore, respondent No,1 has advertised all the vacancies of Inspectors on 26-11-2009 pertaining to direct quota. It has been further averred that the petitioners are free to compete in open recruitment process, if they hold the requisite qualification/age etc. Learned counsel for the respondents has relied upon the case-law cited as SALIM KHAN V. SECRETARY, GOVERNMENT OF N-W.F.P., HIGHER EDUCATION DEPARTMENT, PESHAWAR AND OTHERS (2010 PLC (S.C.) 504) DR. SHAFI-UR-REHMAN AFRIDI V. C.D.A., ISLAMABAD through Chairman and others (2010 PLC 367 (S.C.)) and PUNJAB SMALL BUSINESS INDUSTRIES CORPORATION V. SH. ABDUS SALAM AND OTHERS (2008 SCMR 583).
6. I have heard learned counsel for the parties and perused the available record.
7. Learned counsel for the respondents has contended that the issue raised in the writ petition pertains to the terms and conditions of service of the petitioner, which is covered by Section 3(2) of the Civil Servants Act, 1973, therefore, falls within the exclusive jurisdiction of the Federal Service Tribunal and the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is barred by Article 212 thereof. This objection is by the petitioners in the instant writ petition, therefore, the prayer clause thereof is reproduced hereunder for facility of reference:- "In view of above submissions, it is, therefore, humbly prayed that this petition may graciously be accepted and the petitioners be blessed with the following relief--
(i) A writ of mandamus may kindly be issued to the respondents to declare the act of inviting application for filing the posts of Inspector through direct recruitment is illegal, ultra vices, mala fide, without jurisdiction, without lawfully authority, ineffective and inoperative.
(ii) A direction may kindly be issued to the respondents to regularize the services of the petitioners from the date of promotion strictly in accordance with law and the dictum laid down by the honourable Supreme Court of Pakistan.
(iii) A writ of prohibitory may kindly be issued to the respondents to restrain from proceeding further in filling the posts of Inspector at Collectorate of Customs, Sales Tax and Federal Excise, Multan being contrary to the mandatory provision of law.
(iv) Any other appropriate relief which this honourable court may deem fit in the interest of justice may also be granted to the petitioner"
A bare reading of the prayer clause reveals that the petitioners have sought declaration against the process of inviting applications etc. And directions to the respondents, therefore, the contention of learned counsel for the respondents that issue raised in the writ petition pertains to the terms and conditions of the petitioners, is belied by the aforementioned prayer clause. So far as the question as to whether the Court has power to issue direction to the respondents under Article 199 of the Constitution is concerned, suffice it to say that the Court has ample powers and can issue appropriate direction to the authorities in writ jurisdiction, as has been held in the judgment delivered by this Court in case titled MRS. ROBINA ASLAM NOORANI V. DISTRICT EDUCATION OFFICER (EE-W) PAKISTAN reported in 2008 (C.S.) 682, the relevant portion whereof is reproduced as follows:--- "10. In the present case neither any original order is impugned before this Court nor the appellate order whereas a direction is sought for and in that respect the law is very clear by the apex Court in a series of judgments wherein it is held, "that the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can direct the authorities to perform the acts in accordance to law."
18. The sole purpose of interference in the impugned matter is that the petitioner seeks justice for which she has posited(sic) her confidence in the judiciary. The Courts are not only duty bound to ensure that justice prevails without crossing the limits and boundaries settled by law but are also under the restraint of ensuring that the essence of Fundamental rights i.e, justice, fair play and equity as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, is preserved and provided where demanded.
19. In my view an employee should not be denied practical justice by letting him/her seek and hunt her remedy through a lengthy and unnecessarily extended process of litigation. In effect, an employee should not be discourteously thrown on the road for the search of justice."
' This view is also supported by the judgment rendered by this Court in case titled SADAQAT ALI V.
GOVERNMENT OF PUNJAB THROUGH CHIEF SECRETARY AND 3 OTHERS 2008 PLC (C.S.) 1047, the relevant portion whereof is reproduced below:--- "5. First of all I will divert to the point of jurisdiction.
6. The prayer of petitioner clearly reveals that neither any final nor appellate order of the departmental authorities is under challenge before this Court rather a direction is sought which can be issued in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 particularly on the strength of law laid down in a recent case reported as Secretary Revenue v. Muhammad Saleem 2008 SCMR 948.
7. It is further observed that principal object behind all legal formalities is to safeguard the paramount interest of justice-- Legal precepts were devised in order to view to impart certainty, consistency and uniformity, administration of justice--- to secure same against arbitrariness, errors of individual judgments and mala fides. In support of this observation, I can rely on a judgment reported as Mrs. Munawar Sanni v. Director Army Education 1991 SCMR 135; Administrator District Council Larkana and others v. Gulab Khan and 5 others 2001 SCMR 1320. In the case of Mrs. Munawar Sanni .(supra) despite her status of civil servant she approached the High Court for the redressal of grievance and the point of jurisdiction was raised even up to the level of honourable Supreme Court of Pakistan and the same was resolved in the following terms:- "Question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound down obligation of the authorities to satisfy her claim themselves without the necessity of driving needy litigants a pillar to post."
' In the light of judgments of the honourable Supreme Court of Pakistan referred above, the objection of maintainability of the writ petition raised by the learned Assistant Advocate-General Punjab Lahore is repelled."
The aforesaid judgments, which are based on the judgments of the august Supreme Court of Pakistan hive turned down the objection of maintainability of the writ petitions in cases like the instant one, therefore, in the light of the above case-law, the objection of the learned counsel for the respondents as to the maintainability of the writ petition is repelled. As regards the merits and facts of the case, most of which are undisputed, are that the petitioners are employees of respondent No,3 and were working against the various ministerial posts. As there was ban imposed by the Government on direct recruitment, therefore, in view of exigency of service in 2003 respondent No,1 issued circular, dated 11-11-2003 to all the Collectorates, whereby they were allowed to fill in the post of Inspectors against the vacancies of direct quota from the qualified ministerial staff on acting charge basis. 30 posts in the direct recruitment of Inspectors were lying vacant with respondent No,3. Which could not be filled in due to the ban in terms of S.R.O.No,57(I)/77, the relevant portion whereof reads as follows:--- "METHOD OF APPOINTMENT
2. Recruitment to the posts of Inspector in the Central Excise Departments shall be made by the following methods:- 50% of the posts in the Central Excise and Land Customs Department shall be filled by promotion of ministerial staff (25% by the Graduates only and 25% by graduates as well as by Non- graduates), and the remaining 50% shall be filled by direct recruitment.
' Provided that if a suitable person is not available for, promotion within the Department concerned, the vacancy may be filled by transfer."
' In response to the said letter, respondent No,3 constituted Departmental Promotion Committee, through which the petitioners were selected/promoted against the said posts by clearing examination/test and interviews vide letters date 18-12-2003 and 28-5-2004 and since then they are performing their duties to the entire satisfaction of their superiors. As both the appointment letters are containing almost identical text, therefore, letter dated 18-12-2003 is reproduced hereunder for facility of reference:--- "ORDER In pursuance of Central Board of Revenue, Islamabad's letter C.No,2/6/ACE-VI of 2002, dated 11-11- 2003 and on the basis of recommendations of the Departmental Promotion Committee, the following members of Ministerial Staff of Customs, Sales Tax and Central Excise, Multan Collectorate who have passed the qualifying examination, are promoted as Inspectors in Customs, Sales Tax and Central ,Excise, Multan Collectorate in Basic Scale No,12 of Rs,2475-195- 8595 against available vacancies of direct quota on acting charge basis subject to the condition that promotion will stand reverted in the case of availability of direct recruits. Their promotion will take effect from the date they take over charge of their duties and until further orders. They are directed to report for duty at Headquarter Office, Multan within 10 days of the issuance of this order:--- {{TABLE}} Sr.No, Name and Designation: Present Place of Posting 1.
2.
3. {{TABLE}} ' It may not be out of place to mention here that in response to the respondent No,1's letter, dated 23-11-2009, respondent No,3 furnished the exact vacancy position vide letter dated 24-11-2009, which reads as follows:--- "C. No, 20-Admn/2006/4568 dated: -26-11-2009.
' Mr. Mahmood Hussain, Secretary (M-III), Federal Board of Revenue, Revenue Division, Islamabad.
' Subject: FILLING UP OF VACANT POSTS ' Please refer to the Board's advertisement placed on FBR's website regarding vacant posts in the field offices of FBR and Board's letter C.No,2(4)M-IV of 2009, dated 23-11-2009 on the subject noted above.
2. It is to inform that at present 03 posts of Inspector (BPS-14) reserved for direct quota are vacant in this Collectorate. The same vacancy position of the post of Inspector was communicated to the Board vide this Collectorate's letter C.No,20-Admn/2006/4517, dated 24-11-2009 (copy enclosed).
Against the remarks column, it was indicated just for the information of Board that 32 officials working in MCC, Multan were promoted as Inspector against direct vacancies on acting charge basis with the approval of the Board vide letter C.No,2/6/ACE. VI of 2002, dated 11-11-2003 (copy enclosed) subject to the condition that promotion will stand reverted in the case of availability of direct recruits. It is appropriate to mention that acting charge promotions of these Inspectors have not been regularized so far and they can also not be reverted to their respective lower posts due to non-availability of the same lower posts. It is, therefore, clarified that these 32 officials, working as Inspectors in this Collectorate, are drawing their salaries against the posts of Inspectors, hence these posts are not vacant.
3. The Board is, therefore, requested to advertise only 03 vacancies of Inspectors (BS-14) vacant in MCC, Multan instead of 35 vacancies rectifying the number of posts of Inspectors already advertised through FBR's website.
Enclosed:- As above.
(M.B. Tahir)
Collector ' Copy to:--
(i) S.A. To Chief Collector, Customs (North), Custom House, 64-C, Gulberg-III, Lahore.
(ii) P.S. To Member (Admn), Federal Board of Revenue, Revenue Division, Islamabad.
(M. B. Tahir) Collector"
' The contention of learned counsel for the respondents is that now ban has been lifted and the respondents wants to fill in the post of direct quota, as the petitioners are bound by the terms of their promotion letter, wherein it has been categorically stipulated that they have been promoted as inspector against the available vacancy of direct quota on acting charge basis, subject to the condition that promotion will stand reverted in case of availability of direct recruits. So, under the aforesaid term, they would be reverted on the availability of direct recruits. It may not be out of place to point out that learned counsel for the respondents have frankly admitted that the petitioners are eligible for holding the present post and they are performing their duties satisfactorily. In view of their statement, the issue of eligibility is not in question. Learned counsel for the respondents have been unable to satisfy this Court when asked that admittedly the posts left by the petitioners due to their promotions have been filled in by the subordinate staff and now no posts are available for the petitioners, in case they are reverted. More-over, learned counsel for the respondents were also unable to reply when confronted with the letter, dated 24-11-2009, wherein respondent No,3 has categorically stated that 32 officials working as Inspectors in this Collectorate are drawing their salaries against the post of Inspectors, therefore, these posts are not vacant and requested to advertise only 3 vacancies of Inspectors lying vacant in MCC, Multan instead of 31 vacancies. However, learned counsel- for the respondents has insisted as the promotion of the petitioners was not regular or permanent and it was on acting charge basis with the condition that they would be reverted back on availability of the direct recruits. They have vehemently contended that no vested right has been created in favour of the petitioners regardless of the length of their posting against the said posts on acting charge basis. However, learned counsel for the respondents are unable to explain that how the reversion of the petitioners to their substantive posts would be effected when those are already filled in by the subordinate staff. Learned counsel for the petitioners has argued that the petitioners are working for the last 6/7 years successfully against their present posts and admittedly their eligibility to hold the post is not in question, therefore, they are entitled to be regularized and dislodging them from the present post at this point of time, would ruin their career. He has also contended that by continuous working against the present posts for the last many years, they are entitled to be regularized as being fit for such regularization. He has contended that the respondents are not competent to dislodge the petitioners from their present posts arbitrarily as their working against the said posts successfully for more than 6/7 years justifies their legitimate expectation of being regularized there-against.
The learned counsel appearing on behalf of the respondents miserably failed to rebut the contentions of the learned counsel for the petitioners. Even otherwise, the contentions raised on behalf of the petitioners are not only sound but also derive support from the judgment delivered by the learned Division Bench in Writ Petition No,36 of 1986 titled JAFAR ALI AKHTAR YOUSAFZAI V.
ISLAMIC REPUBLIC OF PAKISTAN AND ANOTHER reported in PLD 1970 Quetta 115, the relevant portions of which read as follows:--- "Secondly, because the approval of the Central Public Service commission was not obtained.
(ii) that, in any case, the appointment was temporary and in officiating capacity; therefore the case being covered by Article 179 of the Constitution, the petitioner has no right to post/s and cannot, under Article 98 of the Constitution, agitate against his reversion to the original post in his parent department.
20. In such like cases when continuous officiation is not specifically authorized by any law and the Government/competent authority continuous to treat the incumbent of a post as officiating, in our view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. In proper cases therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it.
' In other words, the power exercisable by the Government and/or the competent authority vis-a- vis an officiating appointee to terminate his service or to revert him to a lower post is concomitant and goes along with the very important prerequisite that the condition of officiation was lawfully attached initially and was lawfully continued subsequently. As soon as it is to be found that the condition was either unlawful or was continued in an unlawful manner, this would directly adversely affect the said power. Therefore, the lawful exercise of power is dependent upon the existence of a condition which is lawful. The question as to whether or not there is some such existing condition is, according to the Supreme Court view, justifiable. Depending upon the circumstances of each case, it will have to be determined whether or not such-like condition was validly attached and continued with the post or appointment. The decision on this question cannot be left entirely to the discretion of the Government and/or the other competent authority.
' The authorities, it appears, whenever want to retain a power of removal, reduction in rank, etc., although not otherwise empowered to do so under a law or a rule having the force of law, attach or continue to apply some conditions which are not, or do not remain, strictly valid and constitutional, as we have found in the present case. We, in respectful agreement and obedience to the dictum of their lordships of the Supreme Court, cannot, therefore, permit the Government and/or other authorities to retain extra constitutional power of arbitrary termination of service so as to defeat the constitutional guarantees available to civil servants, by doing what is not permissible by law, and will not give effect to such conditions. With the above observations, we find no force in the second contention raised by the respondents' counsel, either."
The above cited case-law has clearly laid down the principle that the authorities do not enjoy unbridled powers, therefore, the condition of officiation attached to the promotion cannot be left at the discretion of the authorities and the Courts have power to determine as to whether such a condition is justified or not. In the said case-law, condition of officiation attached with promotion of employee was held unjustified and consequently his reversion was set aside. The identical question is also involved in the instant petition, where the promotion was made subject to the condition that in case of availability of direct recruits, petitioners would be reverted to their substantive posts. As pointed out above, learned counsel for the respondents failed to justify the action of the respondents to dislodge the petitioners from their present posts in order to fill the same through direct recruitment. Admittedly, the posts left by the petitioners at the time of their promotions have been filled in by the subordinate staff and the learned counsel for the respondents were unable to reply when asked that if the petitioners are reverted, where they would be accommodated, as no post left by them is now available for the purpose. It is admitted position that had the petitioners been working against their earlier ministerial posts, they could avail various opportunities for promotion, which they have lost due to their present posting. It is also an undisputed fact that respondent No,3 vide letter dated 26-11-2009 addressed to respondent No,1, has conveyed that 32 officials are working as Inspectors in the Collectorate and drawing their salaries against the posts of Inspectors, therefore, these posts are not vacant and requested respondent No,2 to advertise only 3 vacancies of Inspectors (BS-14) instead of 35. But this letter has been totally ignored by the other respondents, which shows their arbitrariness. On the other hand, the petitioners have successfully proved that they were eligible and promoted to their present posts by the Departmental Promotion Committee in accordance with law through a transparent process of selection and they are working against the said posts for the last 6/7 years to the entire satisfaction of their superiors and that if they are dislodged, their career would be ruined and they will suffer not only financial loss, but also irreparable loss to their reputation. In the light of the aforementioned case-law, the stance of the petitioners that condition, attached to their promotion to the present posts is unjust and illegal and that treating the said posts as vacant and initiating the process of recruitment there-against is equally unjust, illegal and arbitrary, has substance and cannot be brushed aside.
8. In 'view of the above discussion and relying upon the aforementioned case-law, this writ petition is allowed and the condition to the promotion of the petitioners is held to be arbitrary and unlawful and the respondents are directed not to proceed with the recruitment process.