' Khan Bahadar (petitioner), a driver of Pakistan Public Works Department who has completed his service and retired from the department, questions the appointment of Shabbir Hussain Zaidi (Respondent No, 3), who is posted as Additional Estate Officer (BS-18) on current charge basis. The appointment is assailed on the ground that Respondent No, 3, being a non-gazetted official (BS-14) is incompetent to hold the post of Additional Estate Officer (BS-18), as appointed vide letter dated 20th of August, 2015, which is impugned herein.
2. While resisting the instant petition, Respondents No, 1 & 2 submitted their report and parawise comments. The instant petition was at pre-admission stage, however with the concurrence of all in attendance, the same is treated as Pacca case and decided as such.
3. Learned counsel for the petitioner submitted that Respondent No, 3, being an employee in BS-14 was not eligible for appointment as Additional Estate Officer (BS-18) thus impugned order is nullity in the eyes of law. In support of his contentions learned counsel referred Chapter 2 Part II of The Estacode to show that the appointment of Respondent No, 3 on current charge basis is illegal and unlawful.
4. On the other hand, learned Deputy Attorney General appearing on behalf of Respondents No, 1 & 2 submitted that the instant petition is tainted with males fide as the same is the outcome of motivation on part of the petitioner.
5. Learned counsel representing Respondent No, 3 contended that the appointment of Respondent No, 3 was made by the competent authority which is in accord with law. He added that due to shortage of officers in the respective grades, Respondent No, 3 has been appointed on current charge basis after observing all the codal formalities.
6. After having been heard learned counsels for both the sides as well as learned Law Officer and having gone through the record, first of all I would like to ponder upon the issue of maintainability of the instant petition, as raised by the respondents. There is no cavil that the petitioner alongwith his son namely Muhammad Hassan Sardar filed a suit for declaration and permanent injunction before the Civil Court relating to the allotment of accommodation but mere filing of suit is not sufficient to disqualify the petitioner to knock the doors of this Court for pointing out the legal infirmities qua the appointment of Respondent No,
3. The matter relating to accommodation can be dealt with as per The Accommodation Allocation Rules, 2002. The proceedings in the instant petition are of quo warranto which are not strictly adversarial in nature and it is also not necessary that the person seeking writ of quo warrant must be aggrieved, so the question of locus standi of a petitioner is immaterial. Since the proceedings in the writ of quo warranto are inquisitorial so anybody can move for the same and it is upto the judicial conscious of the Court to see as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973. The said article is meant to control the exercise of unbridled powers by the executive for making appointments to public offices against the law and also to protect a citizen from being deprived of a public office to which he had a right. In terms of Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973, it is within the judicial domain of the Court to call upon the holder of any public office to show as to by what right he is holding the said office, if there is some dispute with regard to his competency to hold such office on the basis of lack of transparency, favoritism, nepotism or personal whims of the executive. The respondents have failed to bring on record any disqualification of the petitioner to file the instant petition, thus the same is competent and proceedable in all respects. Reliance in this respect can be placed on "Barrister Sardar Muhammad versus Federation of Pakistan and others" (PLD 2013 Lahore 343).
7. So far merits of the instant petition are concerned, it would be advantageous to first examine the relevant law governing the subject. For this purpose, we will have to advert to Chapter 2 Part II of the ESTACODE, 2010 Edition at Sl. No, 117 (at P.190) pertaining to "Appointment" which reads as under: "Sl. No, 117 Current/Additional. Charge and Acting Charge Appointments ' According to the existing instructions all appointments by promotion in higher posts are to be made through regular selection process i,e, with the approval of the Central Selection Board/Departmental Promotion Committee and the authority competent to make appointment to the grade in which the vacancy exists. However, in those cases where a vacancy in a higher post occurs for less than two months and it is considered impossible for good reasons to make arrangements for day to day work of that post to be carried on otherwise, the current charge of the duties of that post may be given temporarily, with the approval of the authority competent to make appointments to the said post, to the most senior officer in the cadre present at the place or in the organization where the vacancy may have occurred if he is otherwise fit and eligible for promotion.
2. Situations arise in various departments where higher posts have to be filled urgently for short periods independently of the normal promotion and appointment procedure which takes time. The matter has been considered in consultation with the Ministry of Finance. In order to overcome the difficulty, the President has been pleased to delegate the power to make current charge appointments as follows:- {{lining isssu e}}
(i) Secretaries/Additional Secretaries ...............
(ii) Heads of Attached Department For Grade 17 to 20 not below Grade 21 including Chairman, FPSC and Chairman Federal Inspection Commission in respect of their own officers
(iii) Auditor General of Pakistan Pakistan Audit Department...
(iv) Military Accountant General for Upto Grade 20 Military Accounts Departments
(v) Member Finance, Railway Board for Railway Audit Department
(vi) Head of Department as defined in For Grade 17 and S.R.2(10) not below grade-20 18 {{lining isssu e}}
3. The exercise of the powers as delegated shall be subject to the observance of the following conditions:--
(i) the arrangement should not be made for a period of less than one month and should not exceed three months. However, it may be extended by another three months with the approval of the next higher authority;
(ii) as soon as the current charge is given, a proposal for regular appointment should be initiated and referred to DPC/CSB within a month; and
(iii) in making current charge arrangement, the senior most officer available in the organization and present at the place where the vacancy may have occurred, if he is otherwise fit and eligible for promotion, should be considered.
4. An officer appointed to hold current charge of a higher post shall be allowed, in term of F.R. 35 and proviso to Section 17 of the Civil Servants Act, 1973 pay in his own grade plus additional pay equal to 10% of his grade pay.
5. The existing orders on the subject are modified to the above extent."
' For the sake of guidance, reference can also be made to entry at SI. No, 122-A which is as follows:- - "Sl. No, 122-A ' Appointment of Officers on Current Charge Against Higher Posts and Payment of Additional Remuneration Therefor ' Reference instructions contained in Para 3 of Establishment Division O.M.No, 1/21/76-AR-1/R-II, dated 6.4.1987 (SI. No, 121) which provide that the extension of current charge arrangement should be sought from the President and the Establishment Secretary in case of posts in BPS-20 and above and posts in BPS 17-19, respectively. It is stated the aforesaid instructions have been reviewed inconsequence of amendment in Rule 6 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 notified vide SRO No, 276(1)/2000, dated 25.5.2000 under which Secretaries of the Ministries/Divisions have been authorized to make appointments to posts in BPS 17 to 19, and it is clarified that extension of current charge arrangement to posts in BPS 17 and above is now required to be sought from the appointing authority prescribed in Rule 6 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973.
2. While approving/extending current charge arrangements, the following guidelines are required to be strictly observed:--
(i) Current charge arrangement is a temporary measure pending appointment of a person on regular basis in the prescribed manner.
(ii) Proposal for regular appointment in the prescribed manner should be initiated at the earliest opportunity and current charge arrangement should not be considered as a justification for delay in filling the posts on regular basis in the prescribed manner.
(iii) Six months is considered a sufficiently long period for the purpose of filling of posts on regular basis and, therefore, there should normally be no occasion or necessity for seeking extension of current charge arrangement beyond six months.
(iv) Extension of current charge beyond six months requires prior consultation with the Finance Division before seeking the orders of the competent appointing authority prescribed in Rule 6 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973.
(v) Current charges of a higher post can he given only to those persons who fulfil eligibility conditions for regular promotion to that higher post.
(vi) Normally the most senior persons available in the Wing/Unit where higher post falls vacant, should be given current charge of higher post.
3. While issuing formal sanction for grant of additional remuneration on account of current charge, it may be specifically certified that the above mentioned guidelines have been kept in view while approving/extending current charge arrangement."
' It is manifest from the above that current charge appointment is always made as temporary arrangement for a short span of time and such appointment is to be made from amongst the most senior officers. Instructions contained in the estacode have the force of law by virtue of Section 25(2) of The Civil Servants. Act, 1973. Reliance in this respect can be placed on "Fazali Rehmani versus Chief Minister, N.- W.F.P., Peshawar and others" (PLD 2008 Supreme Court 769).
8. It is an admitted fact that Respondent No, 3 was acting as Assistant (BS-14) in Estate Office Lahore when he was assigned the current charge of Additional Estate Officer (BS-18) Estate Officer Lahore by way of impugned notification dated 20th of August, 2015. Record reveals that Respondent No, 3 was initially posted on current charge basis as Joint Estate Officer (BS-17) in the year 2007 for a period of 90 days which was extended from time to time. He remained posted as Joint Estate Officer w,e,f, 2007 to August, 2012. Later on Mr. Hafeez-ur-Rehman Superintendent (BS- 16) was posted as Additional Estate Officer by way of notification dated 14th of October, 2014 in place of Respondent No, 3 but by way of impugned notification dated 20th of August, 2015, the Respondent No, 3 has been again assigned the same duties.
9. The current charge arrangement is a temporary measure pending appointment of a person to the said post on regular basis. Normally such appointment is not expected to go beyond six months. It is quite strange that Respondent No, 3 being in much lower grade and not eligible to be appointed on current charge basis as Additional Estate Officer, has been made indispensable for the said post despite availability of other competent and eligible officers for the ' said purpose.
Guidance in this respect can be sought from "Tariq Aziz-ud-Din and others: in re Human Rights Nos.8340, 9504-G, 13936-G, 13635-P & 14306-G to 143309-G of 2009" (2010 SCMR 1301) wherein Hon'ble Supreme Court of Pakistan held as under: "26. Learned Attorney General and learned counsel for the Federation also emphasized that majority of officers of BS-21 who now have been promoted to BS-22 were holding acting charge of different divisions as Secretaries, etc. And competent authority had an opportunity to watch their performance, therefore, it had rightly considered them for promotion as against the left out officers whose performance, though not said to be blemished, could not be watched. We are not impressed with these arguments for, legally speaking, appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 reproduced below: "8-B (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the eadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) *[Omitted].
(3) In the case of a post in basic pay Scales 17 to 22 and equivalent, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer drawing pay in basic pay scale in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service, as the case may be, in excess of the promotion quota.
(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occulting for less than six months, current charge appointment may be made according to the orders issued from time to time.
(6) Appointment on acting charge basis shall be made on the recommendations of the Departmental Promotion Committee or the Central Selection Board, as the case may be, save in the case of post in basic pay scale 22 and equip-
(7) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority.
(8) Acting charge Appointment shall not confer any vested right for regular promotion to the post held on acting charge basis."
A careful perusal of the above rule reflects that in case where the appointing authority is satisfied that no suitable officer is available to fill the post and it is expedient to fill the same, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the cadre or service as the case may be. In the instant case, the officers who were holding the post on acting charge basis were not all senior to those of affectee officers and moreover it is quite' evident that even in their cases, holding the acting charge under whatever circumstances, shall not confer any vested 'right for regular promotion.
27. It was further contended by the learned Attorney General that Chief Executive/competent authority was to select his team with the object in view to ensure the good governance in the country. Suffice to observe as is pointed out hereinabove, as well, that posting a junior officer to hold the charge of a senior post, ignoring seniors who are eligible for promotion, does not advance the object of achieving good governance because the rules framed on the subject, noted hereinabove, are not redundant in any manner, therefore, same- need to be respected and followed accordingly..... "
' The same view was further reiterated by Hon'ble Apex Court in the case of "Muhammad Asif Chatha and others uersus Chief Secretary, Government of Punjab, Lahore and others" (2015 SCMR 165).
10. The above discussion leads me to an irresistible conclusion that the appointment of Respondent No, 3 namely Shabbir Hussain Zaidi as Additional Estate Officer, Estate Office, Lahore on current charge basis is clearly violative of law and public interest as a result thereof the instant petition is allowed and the appointment of Respondent No, 3 is declared as without lawful authority, consequently Notification No, F.12(26)/97-E) dated 20th of August, 2015 is set aside. The post of Additional Estate Officer, Lahore is hereby declared as vacant which shall be filled by the competent Authority in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.