SHAHID ANWAR BAJWA, J. --For reasons to be recorded later vide order dated 20.05.2011 dictated in open Court impugned notification dated 22.12.2010 was set aside and the Government of Sind was directed to make appointment of Director General, Agriculture Extension (BPS-20) in accordance with rules laid down in notification dated 21.03.1993. Following are our reasons for the short order:
2. Vide Notification dated 22.12.2010 respondent No. 3, an officer of District Management Group in BPS-19 was transferred and posted with immediate effect till further orders as Director General (BPS-20) Agriculture Extension,, - Hyderabad in his own pay and scale. This Constitutional petition was filed with the following prayers:- "(a) To declare that the Notification No. SOI(S&GAD), dated 22.12:2010 issued by the respondents Nos. 1 and 2 is mala fide, without jurisdiction and no legal effect.
(b) The posting of the respondent No. 3 as Director General Agriculture Extension Sind, Hyderabad and his transfer is mala fide, without jurisdiction and no legal effect and consequently any functions performed by the respondent No. 3 in that capacity would be equally mala fide, without jurisdiction and has no legal effect.
(c) Grant any relief/s as this Hon'ble Court deems fit and proper under the circumstances of the case.
(d) Costs of the petition is also solicited.
3. Learned counsel for the petitioner referred to Notification dated March 21, 1993, and submitted that method of appointment for the post of Director General, Agriculture Extension (BPS-20) has been laid down through this Notification and respondent No. 3 has been appointed on this post in violation of the notification. He relied upon case of Muhammad Akram Malik v. Province of Sind through Chief Secretary; Government of Sind, Karachi and others (C.P. No. D-550 of 1999) decided by this Court vide judgment announced on 17.05.2001.
4. Mr. Muhammad Saulat Rizvi learned counsel for respondent No. 3 submitted that the notification dated 21.03.1993 cannot be read in isolation. He referred to Section 10 of the Sind Civil Servants Act, 1973 and submitted that every Civil Servant is liable to serve anywhere within or outside the province. Learned counsel also referred to Rule 9 of the Sind Civil Servants (Appointment; Promotion and Transfer) Rules, 1974. Learned counsel further submitted that respondent No. 3 is an officer of District Management Group. He is. Qualified agriculturist as he holds Master's Degree in Rural Systems Management from the University of Queensland and is also Professional Engineer duly registered by the Pakistan Engineering Council. He further submitted that the notification cannot, and does, curtail powers of the Chief Minister and Chief Minister can post anyone on any post. Learned counsel also contended that this being a service matter the petition is barred by Article 212 of the Constitution. Mr. Adnan Karim learned Assistant Advocate General Sind submitted that a person belonging to District Management Group can be transferred and posted on any post under the provincial government. He relied upon Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCM R 54) and Muhammad Younus Aarin v. Province of Sind through Chief Secretary, Sind, Karachi and 10 others (2007 SCM R 134).
5. We have considered submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
5. Contention of Mr. Saulat Rizvi that it is a service matter, therefore, jurisdiction of this Court is barred by Article 212 of the Constitution is clearly misconceived. The petitioner has not sought any relief for himself The sole question agitated through this petition is question of legality or otherwise of appointment of respondent No. 3. Therefore, this petition is in the nature of writ of quo warranto and it is well-settled law that Service Tribunal does not have jurisdiction to issue a writ in the nature of writ of quo- warranto. If any authority is needed one may refer Dr. Nasimul Ghani v. Province of Sind and others (C.P. No. D- 932 of 2009) decided on 02.04.2011.
7. Mr. Rizvi further argued that respondent No. 3 had requisite qualification because respondent No. 3 -is a professional engineer registered by -"the Pakistan Engineering Councils and has other appropriate and relevant degrees. This contention is of no relevance to the point in issue. The point in issue is whether appointment of respondent No. 3 as Director Geilfffel Agriculture Extension is in accordance with Notification "dated March 21, 1993. Notification dated 21.03.1993 itself is in the following words:- GOVERNMENT OF SINDH AGRICULTURE AND WILDLIFE DEPARTMENT Karachi, dated 21st March, 1993 NOTIFICATION No: S. O. (A-i)DA-933/88(P-II). In pursuance of sub-rule (2) of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and with the concurrence of Services and General Administration Department and Sind Public Service Commission, the method, qualifications and other conditions of appointment to posts B-16 and above in the. Agriculture Extension Wing are prescribed as in the following statement:- STATEMENT ((TABLE))S. No. Name of the post with BPS Method of Appointment Qualification / Experience Necessary for Initial recruitment Age limit Min. Max.
1 2 3 4 5 6 Director General Agriculture Extension Sind (BPS- 20) By Promotion from amongst the Director of Agriculture Extension BPS-19 having atleast 17 years service in BPS-17 and above OR length of service as prescribed by the Government time to time OR By transfer of Director Generals of the Wings of Agriculture Department ''
8. In the notification for appointment as Director General, Agriculture Extension two methods are prescribe one, by promotion from amongst Directors of Agriculture Extension and other, by transfer of Director General of other Wings of the Agriculture Department. Admittedly, the respondent No. 3 was not Director General of any pother wing of the Agriculture Department and admittedly respondent No. 3 was not Director in the Agriculture Extension Department and, therefore, could not have been even promoted as Director General, in any case, notification dated December 22, 2010 is in respect of transfer and not in respect of promotion. Expressio unius est exclusio alterius: appointment to the post in question could only be made through either of the prescribed methods and not otherwise. Mr. Rizvi referred to Section 10 of the Sind Civil Servants Act, 1973. This Section provides that every civil servant shall be liable, to serve anywhere within or outside of Province in any post under the Government of Sind etc. There is no cavil with the proposition that civil servant is liable to serve in any post under the government. Fact that a civil servant is liable to serve does not mean that every civil servant is ipso facto qualified for any and every post under the provincial government. What Section 10 provides is that if it is. In accordance with rules or in accordance with prescribed methods and with prescribed qualification. It is not available to the civil servant to refuse to accept any such posting.
9. Both Mr. Rizvi learned counsel for respondent No. 3 and Mr. Adnan Karim learned Assistant Advocate General referred to Section 9 and to the Table given in the Section where in Item 1 (a) it is provided that officers of Federal Government working under the Provincial Government may be posted and competent authority in this regard is the Chief Minister. Again it is not a question in this case that respondent No. 3 has not been posted by the Chief Minister and has been posted by someone else. Question is that respondent No. 3 has not been posted in accordance with statutory notification dated 21.03.1993. Reliance was made on Peer Muhammad's case (supra) by learned Assistant Advocate General. In Peer Muhammad's case in Para 3. Of the judgment controversy was that the petitioner wanted for himself posting on the post of Director General Agriculture Extension because he felt that he was equally qualified and was not be posted against vacancy. In the present case petitioner has not relied for himself. In Muhammad Younus Aarin's case (supra) question was relating to Engineering Diploma Holders and professional engineers registered with the Pakistan Engineering Councils. Therefore, two cases are clearly and totally distinguishable.
10. Mr. Adnan Karim submitted that respondent No. 3 belongs to DMG Group and can be posted on any post under the provincial government. In Esta code 6th Edition at Pages 1316 and 1317 in Serial No. 4 it is stated, in respect of District Management Group, as under:- "2. The District Management Group will function within the following framework of rules and procedure. These instructions will apply to members of All Pakistan Unified Grades and to all other Government servants holding the .Posts 'specified in the Schedule of Cadre Strength of the Civil Service of Pakistan (now called All-Pakistan Unified Grades).
6. Secretariat Posts.- As in other occupational groups, officers of this group will be eligible for Secretariat appointments in accordance with the procedure already prescribed. The officers will be selected, after written tests and interviews, for posts of Deputy Secretary and Joint Secretary in the Central Government and equivalent posts in the Provincial Secretariat. These posts will be in a common post to which officers of all Federal and Provincial Departments will be eligible. Those selected for Deputy Secretary and Joint Secretary or equivalent posts would be put through a training programme of 3-4 months. Their final selection would be made after satisfactory completion of training. No posts of the rank of Deputy Secretary and Joint Secretary in the Federal Secretariat, or their equivalent in the Provincial Secretariats tenable by officers of All- Pakistan Unified Grades, would be filled except from these panels. Relaxation will be made with Prime Minister's approval in individual cases."
11. Admittedly, the post of Director General Agriculture Extension does not belong to any of these two. There is another aspect of the matter. As noticed in case of Syed Mehboob v. Province of Sind through Chief Secretary, Government of Sind and 3 others (2011 PLC [C.S] 37). Provincial Government had decided to cancel all postings on OPS basis. Impugned notification is again a case of posting on OPS basis.
12. For the above reasons it is clear to our mind that impugned notification cannot be sustained.
Above are the reasons for the short order dictated in open Court on 20.05.2011.