SAJJAD ALI SHAH, J.---Appellant, Government of Sindh, has impugned the Judgment of Sindh High Court passed on 23.02.2017, whereby, the Government was directed to appoint the Respondent in BPS-17 on the deceased civil servant quota with seven annual increments from the date when the Respondent application for appointment on deceased civil servant quota was forwarded.
2. Briefly, the Respondent's father expired on 14.02.2007 while serving as High School Teacher in BPS-
17. The Respondent on 20.09.2010 moved an application seeking his appointment on the basis of deceased civil servant quota. It appears that while the Respondents request was under consideration, he approached Sindh High Court by filing a writ petition seeking an order directing the Government of Sindh to act according to its policy circulated by the Section Officer Treasury to Government of Sindh vide letter No, FD-9-TRO/1950/207 dated .30.04.2007 which provides that "where a Civil Servant dies while in service or is declared invalidated or incapacitated for further service, one of his children shall be provided job on any of the pay scales Nos, 1 to 10 in the department in which the deceased Civil Servant was working, without observance of prescribed formalities, if such child is otherwise eligible for the post, subject to the availability of the sanctioned post/vacancy", however, during hearing perhaps counsel for the Petitioner referred to the Notification No, SORI(SGA&CD)2-3/2002 dated 02.09.2002 which at the relevant time empowered the provincial government to appoint one of the children of the Civil Servant who dies during service to a post on any of the basic pay scales 11 to 20 provided that the child possesses the minimum qualification prescribed for appointment to that post. Keeping this notification in view, notwithstanding that the Respondent was seeking appointment in Grade 1 to 10 the High Court through impugned Judgment directed the Appellant Government of Sindh to appoint the Respondent in BPS-17 with seven increments as period of seven years has lapsed between the application made by the Respondent seeking appointment against deceased quota and the judgment of Sindh High Court.
3. Mr. Sibtain Mehmood, Assistant Advocate General contended that the amendment made by the Government of Sindh in Rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer)
Rules, 1974 vide. Notification dated 20.09.2002 by introducing Rule 10-A though provided the appointment of the children of a Civil Servant who dies during service to a post in any of the basic pay scale 11 to 20, provided, that the child possess the minimum qualification prescribed for appointment to that post, however, the Government after realizing that appointment in Grade 16 and above could not be made without the recommendation of Public Service Commission, vide another Notification dated 15.10.2008 substituted Rule 10-A by providing that the appointment of the children of a deceased, invalidated or incapacitated civil servant could only be made in Grade 16 or 17 if he otherwise qualifies the test, examination or interview from Public Service Commission.
Assistant Advocate General therefore, contended that the appointment in Grade 17 is not only in violation of the present rules but also in violation of the various judgments of this Court where this could had directed the appointment through Public Service Commission.
4. On the other hand, Counsel appearing for the Respondent has contended that the impugned judgment is strictly in accordance with the Notification dated 02.09.2002 which was in force at the time when the father of the Respondent had expired, however, the counsel was unable to show that the respondent has ever claimed treatment in terms of amendment of 2002 introduced in Section
10. Beside, neither the Assistant Advocate General nor the counsel for the. Respondent was able to pinpoint any appointment in Grade 16 onwards ever made by the Government of Sindh in terms of Notification dated 02.09.2002.
5. We have given our anxious consideration to the contentions raised by learned counsel for the respective parties, perused the material placed on record and the relevant provisions of law. It appears that the Government of Sindh while exercising power conferred under section 26 of the Sindh Civil Servants Act, 1973, amended Rules 10 and 11 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred to as 'the appointment rules, 1974') which provided for initial appointments to the posts in Grade 16 to 22 through Public Service Commission and Grade 3 to 15 on the recommendations of Departmental Selection Committee by introducing Rules 10-A and 11-A respectively. Since through the impugned judgment of the High Court of Sindh, petitioners were directed to appoint the respondent in BPS-17 on deceased civil servant quota by making reference to newly introduced Rule 10-A of the appointment rules, 1974, therefore, we would deal with this rule exclusively.
6. Rule 10-A was inserted for the first time in the appointment Rules, 1974 on 2.9.2002 and thereafter it was substituted and amended thrice; firstly on 15.10.2008, second on 30.7.2011 and finally on 16th of September, 2014. Rule 10-A of the appointment rules, 1974 was originally introduced vide notification No, SOR-1(S&GAD)/2-3/2002 dated 2.9.2002 and started with non-obstante clause thereby overriding all other provisions in the appointment rules and provided as under:- "10-A. (1) Notwithstanding anything contained in these rules the appointing authority may appoint one of the children of a civil servant who dies during service to a post in any of the basic pay scales Nos, 11 to 20; provided that the child possesses the minimum qualifications prescribed for appointment . to that post.
(2) The appointment as aforesaid shall be subject to the availability of a vacancy and where two or more vacancies in different pay scales are available at a time and the child possess the qualifications to make him eligible for appointment to more than one post he will preferably be appointed to the post carrying higher pay scale."
7. A perusal of the above reproduced rule reflects that in the eventuality of death of a civil servant during service, it empowered the appointing authority to appoint one of the child of such deceased civil servant in any of the basic pay scale from 11 to 20 and the only requirement provided by, the proviso was that the child must possess minimum prescribed qualifications. There was no condition of any examination, test or interview and such appointment could be made in any department of the government and such appointment could be made only in case of death of a civil servant during service. The effect of rule 10-A was widened when it was substituted by notification No, SOR-1(S&GAD)/2-3/02, dated 15.10.2008 which provided:- "10-A. Notwithstanding anything contained in these rules, where a Civil Servant dies while in service or is declared invalidated or incapacitated for further service, one of his unemployed children, may be employed against a post for initial appointment in BPS-16 and 17 for which he possess the minimum qualifications prescribed to that post; Provided that such child may be given ten additional marks in the aggregate by the Public Service Commission or the appropriate Selection Board or Committee, if he, otherwise qualifies the test, examination or interview.
Provided further that a person who may have applied under this rule and qualifies purely on merit shall not be awarded any additional marks and his selection shall be made on merit and not under this rule."
8. Perusal of the substituted Rule 10-A reflects that with widening its scope, certain conditions were also imposed. Earlier the benefit of such rule was provided only to the children of the deceased civil servant who died during the course of service whereas the substituted rule included the children of the civil servant who were declared invalidated or incapacitated for further service and the post against which such category of persons could be appointed, was curtailed to BS-16-17 only instead of BS 11-20. The scope of appointment was further restricted to only those posts which were available for initial appointment. Under substituted rule 10-A, the powers of direct appointment was taken from the appointing authority and the appointment was made subject to the qualifying of test, examination or interview from the Federal Public Service Commission or the appropriate Selection Board and the only concession which was extended through the substituted Rule 10-A was to give 10 additional marks in aggregate to such candidate by the PSC or appropriate selection board or committee and that too only when the candidate of such category qualifies the test, examination or interview just to enhance his chances of employment with a further addition that in case he qualifies on merits, he would not be given the benefit of additional 10 marks.
9. Second time Rule 10-A was substituted vide notification dated 30.07.2011 and provided as follows: "10-A. Notwithstanding anything contained in these rules, where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his unemployed children or, as the case may be, widow (when all the children of the deceased employee are minor) may be employed against a post meant for initial appointment in BPS-16 and 17 for which he/she possesses the minimum qualifications prescribed to that post; Provided that such child or widow may be given ten additional marks in the aggregate by the Sindh Public Service Commission or the appropriate Selection Board or Committee, if he or she otherwise qualifies the test, examination or interview; Provided further that a person who may have applied under this rule and qualifies purely on merit shall not be awarded any additional marks and his selection shall be made on merit and not under this rule. Provided further that the cut off date shall be within two years of the death of the officer or official".
10.It appears that no substantial amendment was made except entitlement of the widow of the deceased civil servant to such appointment in cases where all the children of the deceased employee are minor. Additionally, a cut off date of two years was introduced restricting the rights of the children and the widow of such deceased civil servant for such employment to two years after the death of the civil servant.
11.It appears that lastly fourth proviso to Rule 10-A was introduced on 16th September, 2014 to ensure that the cut off date of two years provided vide 3rd proviso does not take away the right of employment from those to whom such right had accrued. The 4th proviso though not relevant to the controversy in hand but is reproduced to put the record straight.
"Provided further that if a right of employment has already accrued to any of the children of deceased or invalidated or incapacitated civil servant then the former shall not be deprived of the benefit accrued to him under Notification dated 11.3.2008 and 17.7.2009 of these rules".
12. Though the respondent in his petition filed in 2015 had claimed treatment in terms of letter NO. FD-9-TOR/1950/207, dated 03.04.2007 which reiterated the implementation of rule 11-A for appointment in pay scale 1 to 10 as is evident from para-11 of the petition but to our dismay the High Court on its own considered the appointment of the petitioner in terms of rule 10-A as was introduced on 02.09.2002 notwithstanding the fact that the said rule by that time was no more on the statute book as it stood substituted on 15.10.2008 beside its enforcement was without examining its legitimacy and applicability in the light of various pronouncements made by this Court. In fact the original Rule 10-A empowered the appointing authority to appoint a person in grade 11 to 22 without adopting the procedure as provided in rule 10 of the appointment Rules, 1974, in other words rule 10-A provided an exemption to such category of candidates from the general procedure of appointment through public service commission as provided in rule 10 of service rules 1974 and the only condition was that such candidate had to possess the minimum prescribed qualification. Now the question is as to whether such exemption of direct appointment by-passing the process of public service commission could be allowed lawfully by the Government to the children of the specified category of civil servants. It appears that more or less similar proposition had come up before this Court though in cases where absorptions were made by the Government so that status of a civil servant could be conferred on a person without going through the process of public service commission and since absorption is also a kind of appointment, therefore, the dicta laid by this Court could conveniently be applied to the cases of fresh appointments. The findings of the Court as laid down in Criminal Original Petition No, 89 of 2011 Contempt proceedings against Chief Secretary, Sindh and others (2013 SCM R 1752), therefore, very relevant and are reproduced:- "Article 4(1) provides that all citizens are entitled to enjoy equal protection of law and have inalienable right to be treated in accordance with law. In this respect the Act of 1973 framed under the command of Articles 240 and 242 of the Constitution provides protection to all the civil servants by assuring them that the law promulgated by the Parliament and/or provincial Assemblies will be subject to the Constitution. The phrase 'subject to the Constitution' has been used as prefex to Article 240 which imports that Assemblies cannot legislate law against service structure provided in Part XII of Chapter 1 of the Constitution."
13. This Court, further in Para 119 of the said judgment, declared all the absorptions made by the respective Governments as illegal and unlawful and also held the supportive legislative instrument which were introduced with non obstante clauses to save such absorption as discriminatory and violative of Article 25 of the Constitution. Para 119, reads as follows:- "A civil servant, who after passing the competitive exam in terms of the recruitment rules, is appointed on merits, looses his right to be considered for promotion, when an employee from any other organization is absorbed under the impugned legislative instruments, without competing or undertaking competitive process with the backdated seniority and is conferred the status of a civil servant in complete disregard of recruitment rules. Under the impugned enactments, it is the sole discretion of the Chief Minister to absorb any employee serving in any other organization in Pakistan to any cadre in the Sindh Government. The discretion of the Chief Minister to absorb any employee from any part of Pakistan to any cadre with backdated seniority directly affects the fundamental rights of all the civil servants in Sindh being violative of the Article 4 which provides equal protection of law to every citizen to be treated in accordance with law, which is inalienable right of a citizen. The impugned legislative instruments have been promulgated to extend undue favour to few individuals for political consideration and are against the mandate of the Civil Servant Act and recruitment rules framed hereunder. The impugned instruments are discriminatory and pre judicial to public interest as such enactments would be instrumental in affecting the Civil servants' tenurial limitations and their legitimate expectancy of future advancement. The provision of absorption on the plain reading reveals that this provision has been promulgated to circumvent and obviate the very framework of the Provincial civil structure, as envisaged by the Constitution and law. By such impugned instruments, a parallel system based on discrimination and favoritism has been imposed to supersede the existing law, Rules and Regulations governing the important matters of civil servants like 'absorption', therefore, it can be safely held that the impugned instruments being discriminatory are violative of Article 25 of the Constitution, as it is not based on intelligible differentia not relatable to the lawful object."
14. Likewise, in Suo Motu Case No, 13/2016 (2017 SCM R 838), notwithstanding the fact that the recruitment rules of National Accountability Bureau excluded recruitment through FPSC but this Court, in the larger public interest to maintain the transparency, directed the NAB authorities to ensure that all the recruitments are undertaken through Federal Public Service Commission. Such observations find mention in para 33 of the judgment which reads as under:- "We expect that all the existing vacancies in NAB or that may be pursuant to the Committee's findings in future shall be filled within three months through the Federal Public Service Commission, from the date, the proposed Committee finally submits its report for our perusal. In the intervening period, NAB shall requisition its existing vacancies to the FPSC, which shall take steps for filling up the same. We are aware that the recruitment rules of NAB exclude recruitment through the FPSC, but in the larger public interest, the FPSC shall undertake this exercise and the posts shall be filled in by observing the mandate of Articles 240 and 241 of the Constitution, as these posts are extremely sensitive and only the most qualified candidates should be appointed. The Chairman, NAB, shall submit compliance report in the matter."
15.We have also found that the Government of Sindh in terms of rule 10-A had appointed Abdul Aleem Bullo, Muhammad Ali Mangan and Faiz Ali Mangan directly vide notification dated 7.5.2013 without following the recruitment process of the Public Service Commission. However the said notification was immediately withdrawn by acknowledging the process to be illegal and the statement to that effect was filed in Criminal Original Petition No, 89 of 2011.
16. Though neither the Assistant Advocate General Sindh nor the counsel for the respondent has, brought to our notice but we on our own have found out that the Government of Sindh, perhaps after realizing that such process of appointment and exception to Rule 10 of the appointment rules, 1974 was violative of Article 25 of the Constitution, while exercising powers conferred under section 26 of the Sindh Civil Servants Act, 1973, made amendments in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and vide notification No,SORI(SGA&CD)2-3/2002 (P-IV), dated the 10th October, 2016 published in Sindh Government Gazette on 27.10.2016 deleted Rule 10-A.
17. It must be kept in mind that Public Service Commission, may it be federal or provincial is a constitutional body created in terms of Article 242 of the Constitution to ensure that the process of appointments into the civil service is transparent, merit based through competitive process to provide equal opportunity to all the citizens to participate which not only create confidence in the system but earn respect for the meritorious selection and for this very reason this Court through its various pronouncements has held that the process provided in federal and provincial statutes for appointment through Public Service Commission is for public good and any deviation to bypass the competitive process would violate the right of equal treatment to the citizens of this country as guaranteed under Article 25 of the Constitution and, therefore, would not be sustained.
18.In these peculiar circumstances and in view of the dicta laid down by this Court in various judgments discussed above, even the Government of Sindh perhaps while taking cognizance of the fact that the amendments introduced in Rule 10 was in violation of Article 25 of the Constitution of Islamic Republic of Pakistan has deleted the provisions of Rule 10-A, the High Court should have been conscious in exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan by directing appointment in Grade 17 without the competitive process, that too with seven advance increments, without taking note of the series of the judgments and legislative changes, as discussed above.
19. In the foregoing circumstances and for the reasons detailed above, this appeal is allowed.