ADNAN-UL-KARIM MEMON, J.---Through the instant Petition, the Petitioners have prayed for the following relief(s). i. Declare that the act of the Respondents to advertise (01) post for appointment of Plant Protection Advisor/Director General (BS-20), Department of Plant Protection, Karachi through direct/initial appointment is illegal, unlawful unconstitutional and against the Rules. ii. Declare that post of Plant Protection Advisor/ Director General (BS-20) is the promotion post for the Petitioners require certain experience according to SRO, 1986. iii. Declare that act of the Respondent No.4 require the application for appointment of Plant Protection Advisor/Director General (BS-20) from the candidates having domicile of Punjab and deprive the Petitioners, which is clear violation of the Articles 25 of the Constitution of Islamic Republic of Pakistan, 1973. iv. Declare that the Respondents have deprived the employees of the Department of Plant Protection from the post of Plant Protection Advisor/Director General (BS-20) from decades.
2. Brief facts of the case are that Respondent No.4/Federal Public Service Commission (FPSC) advertised one vacancy of Plant Protection Advisor and Director General (BS-20) (hereinafter referred to as "PPADG") vide Public Notice published in various Newspapers on 20.06.2016 for candidates having Domicile of Province of Punjab. Per Petitioners the post of Plant Protection Advisor and Director General (BS-20) is a promotion post as per SRO 49(I)/86 issued by Respondent No.2 and person eligible is Director (Technical BS-19) having 17 years' service in BS-17 and above or 12 years' service in BS-18 and above in case of direct recruits in BS-19 or five years' service in BS-19 in case of direct recruits in BS-19; including 3 years' service Joint Director BS-19 in the department. As such, said post cannot be advertised through FPSC and confined to the candidates having domicile of Province of Punjab only. Thus, Petitioners have been deprived of their Constitutional right under Article 25 to compete for the said post. According to Petitioners they are qualified in all respects for the post of PPADG as per Recruitment Rules, 1986. Petitioners added that the Respondent No.2 vide his letter dated 15.03.2016 requested the Respondent No.4 to advertise one post of PPADG, Plant Protection Department, Karachi. It is averred by the Petitioners that the Respondent No.4 was provided Recruitment Rules in duplicate on the above noted subject, whereas, the Respondent No.4/FPSC advertised (01) post of PPADG for candidates having domicile of Province of Punjab,. male as well as female candidates. The Petitioners contended that according to Recruitment Rules of SRO 49(1)/86 published vide Notification dated 16.01.1986, it is a promotion post and Petitioners hailing from other Provinces are deprived from legitimate right to promotion from time to time on the basis of political influence which caused frustration among the Petitioners.
3. Upon notice to the Respondents, para wise comments were filed on behalf of Respondents.
4. Mr. Ahmed Ali Ghumro, learned counsel for Petitioners argued that the Act of Respondent No.4 that is, advertising one promotion post of PPADG, Department of Plant Protection, Karachi, only for the candidates having domicile of Province of Punjab is illegal, unconstitutional and in violation of Article 25 of the Constitution; that post of PPADG is a promotion post amongst the employees, of department of plant protection under Recruitment Rules, 1986 and not for initial/direct recruitment; that depriving eligible candidates belonging to three other provinces is unjust on the part of Respondents; that Respondent No.4 has no authority to advertise the post of PRADG other than the requisition form and Recruitment Rules via Letter, dated 15.3.2016 issued by the Respondent No.2; that since it is one post of PRADG, recruitment should be made on the basis of open merit as per Rules.
5. Mr. Muhammad Aslam Butt, learned DAG, representing Respondents Nos.1 to 4 has argued that there is no regular incumbent in the Department fulfilling the criteria laid down in Recruitment Rules, 1986 for appointment of the post of PRADG. The feeding post of Director General (DPP) is Director Technical, on which a regular officer of the Department namely Mr. Azam Khan, Director (Technical BS-19) cannot be promoted as the lacks the required length of service. That no initial appointment could have been made on this post in past, therefore, the post/seat falls to regional quota of Province of Punjab, which has the largest share of 50%; that the instant Petition is not maintainable in law as the Petitioners are not aggrieved person besides they do not possess the required qualification, experience or satisfactory service record to be promoted to the post of PRADG; that the petitioners are Civil Servants in terms of Rule 3(2) of Service Tribunals Act, 1973 and Federal Services Tribunal has jurisdiction to entertain the grievance of the Petitioners; that the Petitioners have concealed the material facts from this court which establish that they are not eligible for the said post. That as per para 2(a) of Notification dated 16th January, 1986 the post of Director General will be filled in by promotion and failing that by initial appointment; no regular incumbent in the Department fulfilling the criteria laid down in Recruitment Rules for appointment of the post of PPADG was available, hence the proposal for initial appointment was forwarded to FPSC as per requisition and allocation chart. According to quota allocation the maximum, share @ 50% goes to Province of Punjab, therefore, naturally the incumbent from Punjab had the right to be posted against the said post. He lastly prayed for dismissal of the instant Petition.
6. We have heard learned counsel for the parties and perused the material available on record.
7. First and foremost we address the question of jurisdiction of this Court to entertain Petition under Article 199 of the Constitution.
8. The Petitioners are seeking appointment in the instant Petition which does not fall within the scope of terms and conditions of service and bar of jurisdiction under Article 212 of the Constitution is not attracted in the present proceedings. Therefore, the instant Petition can be heard and decided on merits.
9. The pivotal question in the present, proceedings is whether the post of Plant Protection Adviser/Director General (BS-20) is a promotion post as per Recruitment Rules, 1986 and in case of non-availability of a suitable person the post is required to be filled by initial appointment in accordance with Recruitment Rules or to be distributed as per 50% share quota fixed for the Province of Punjab?
10. Perusal of SRO 49(1)/86 dated 16.1.1986 amended vide S.R.O.No.286(i)/2000 dated 23rd May, 2000 issued by Respondent No.2 A shows that the post of Plant Protection Adviser and Director General (BS-20) is a promotion post.
11. Federal Government has allocated the quota for all the provinces and by virtue of that, 50% posts have been allocated to the province of Punjab/Islamabad Capital territory (ICT), 19% to the Province of Sindh with further sub-allocation of 11.4% to Sindh (Rural) and 7.6% to Sindh (Urban), 11.5% to Khyber Pakhtunkhwa, 6% to the Province of Balochistan, 4% to NA/FATA and 2% to Azad Jammu and Kashmir.
12. It is evident that the posts have been, allocated Province-wise by the Federal Government maintaining the quota prescribed by the Government of Pakistan as per Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which reads as under:- "14. Vacancies in the under-mentioned posts shall be filled on All Pakistan basis in accordance with the merit and provincial or regional quotas prescribed by Government from time to time.
(1) All posts in basic pay scales 16 and above and equivalent.-
(2) Posts in basic pay scales 3 to 15 and equivalent in offices, which serve the whole of Pakistan."
13. That bare perusal of Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended vide Notification dated 28th March 2017 issued by Respondent No.1 shows that the appointment on the subject post is to be done through open merit on contract basis. For ready reference said amendment is reproduced as follows: No. 208(I)/207. In exercise of powers conferred by subsection (1) of Section 25 of the Civil Servants Act, 1973, (LXXI of 1973) read with Notification No.S.R.O.120(1)/98, dated the 27th February, 1998, the Prime Minister is pleased to direct that the following amendment shall be made in the Civil Servants, (Appointment, Promotion and Transfer) Rules, 1973, namely: In the aforesaid Rules, in Rule 14, after proviso the following new proviso shall be inserted: Provided further that where the post of Head of an Organization is reserved for promotion and in the absence of suitable person, the post is required to be filled by initial appointment in accordance with the provisions of Recruitment Rules, the appointing authority may fill up the vacancy on open merit on contract basis and where such post is reserved for initial appointment, it may be filled on regular basis on open merit"
14. Learned DAG was confronted with Rule 14 (supra) but he has failed to justify the action of the Respondents to allocate the post of Plant Protection Advisor and Director General (BPS-20) to the Province of Punjab.
15. Perusal of this Court's Order dated 14.06.2016 shows that this Court provisionally allowed the Petitioners to apply and compete against the Public Notice issued by the Respondent No.4/FPSC for recruitment of Plant Protection Adviser and Director General.
16. Learned DAG has submitted a Statement dated 24.05.2017 showing that Federal Public Service Commission in compliance of this Court Order bated 16.06.2016 allowed the Petitioners to compete for the said post but, Petitioners could not qualify. As such, the Respondent No.4/FPSC vide its Letter dated 12.5.2017 addressed to the Respondent No.02 conveyed recommendations about a candidate namely Waqas Wakil for appointment to the post of Plant Protection Adviser and Director General.
17. We have noted that this Court vide Order dated 14.06.2016 directed that no final decision for appointment of the post of Plant Protection Advisor and Director General (BPS-20) shall be taken without permission of this court.
18. We are of the view that the post of Plant Protection Advisor and Director General (BPS-20) is required to be filled in accordance with Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended up to date.
19. In view of facts and circumstances of the case, the instant Petition is disposed of with direction to Respondent No.02 to initiate recruitment process, afresh for the appointment against the post of Plant Protection Adviser and Director General (BS-20) in accordance with Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended vide Notification dated 28th March, 2017 issued by Respondent No. 1.
20. Pending application are disposed of accordingly.