MIANGUL HASSAN AURANGZEB, J.----Through this common judgment, I propose to decide Writ Petitions Nos.324/2017 and 532/2017, since they entail common questions of law and fact.
2. Through Writ Petition No.324/2017 titled "Haseeb Iftikhar Ahmed v. The Secretary , Law and Justice Division and others ", the petitioner seeks the issuance of a writ of quo warranto against respondent No.2 (Mr. Saeed Afzal), challenging his appointment by transfer as Assistant Registrar (BS-16) in the Customs Appellate Tribunal, Peshawar , through notification dated 25.01.2016, issued by the Law and Justice Division, Government of Pakistan.
3. Through Writ Petition No.532/2017, titled "Sidra Anjum v. Federation of Pakistan through Secretary , Establishment Division and others", the petitioner , Sidra Anjum, is also challengin g the appointment of Mr. Saeed Afzal made through the said notification.
4. Mr. Saeed Afzal whose appointment has been challenged in the abovementioned writ petitions shall hereinafter be referred as (respondent No.2).
5. Learned counsel for the petitioners submitted that respondent No.2 has been appointed as Assistant Registrar (BPS-16) in the Customs Appellate Tribunal, Peshawar , in violation of the applicable rules; that the method of appointment against the post of Assistant Registrar has been prescribed in notification S.R.O.747(I)/98, dated 01.07.1998, issued by the Ministry of Law, Justice and Human Rights; that the said notification provides that the post of Assistant Registrar shall be filled in by initial appointment and failing that by transfer; that no steps were taken for filing the posts of Assistant Registrar ,, by the Customs Appellate Tribunal by initial appointment; that the said notification also provides that an appointment by transfer shall be made by selection from amongst the person holding appointment on a regular basis under the Federal Government in the same basic pay scale in which the posts to be filled exists, provided that the person concerned possesses the qualifications and experience prescribed for initial appointment or promotion to the post concerned; that the qualification and experience required for the appointment of person against the post of Assistant Registrar is law graduate and two years experience in the relevant field; and that the age limit prescribed for the said appointment is 20 years minimum and 28 years maximum.
6. Learned counsel for the petitioners further submitted that respondent No.2 was working as Assistant Private Secretary (BPS-16) in the Ministry of Law and Justice Division; that respondent No.2 was appointed as Assistant Registrar, Customs Appellate Tribunal, Peshawar, in consequence of favourtism and nepotism; that to further oblige respondent No.2, he has been transferred as Assistant Registrar, Customs Appellate Tribunal, Peshawar; that the said transfer is also in violation of the rules; that the said transfer was made prior to the completion of respondent No.2's probation period against the post of Assistant Registrar, Customs Appellate Tribunal, Peshawar; and that in order, to yet again favour respondent No.2, the post of Assistant Registrar an in- principle decision has been taken to upgrade the post of Assistant Registrar, Customs Appellate Tribunal (BPS- 16) and redesignate it as Registrar, Customs Appellate Tribunal (BPS-17). Learned counsel for the petitioners prayed for the writ petitions to be allowed, and for respondent No.2's appointment by transfer as Customs Appellate Tribunal (BPS-16) to be set-aside.
7. On, the other hand, learned counsel for the contesting respondents submitted that respondent No.2's appointment was made strictly in accordance with the law; that any civil servant could be transferred in exigency of service; that respondent No.2 was already working against a post in BPS-16, and he was transferred to another post on the same pay scale; that respondent No.2 was appointed as Assistant Registrar , Customs Appellate Tribunal, because he was a suitable person for the said post; that respondent No.2 has a law degree and variety of experience; that the writ petitions were filed by the petitioners only to malign respondent No.2; and that the writ petitions were filed at the instance of respondent No.2's predecessor , who had been repatriated to his parent department. Learned counsel for the contesting respondents prayed for the writ petitions to be dismissed.
8. I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.
9. An essential condition for the issuance of a writ of quo warranto is that the appointment in question should have been made without the authority of the law or in other words contrary to the relevant statutory provisions. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("A.P .T. Rules") were made by the President of- Pakistan in exercise of the powers conferred by section 25 of the Civil Servants Act, 1973. Rule 3(2) of the A.P.T.
Rules provides that the method of appointment and qualifications and other conditi ons applicable to a post shall be laid down by the Ministry or Division concerned in consultation with the Establishment Division. In pursuance of Rule-3(2) of the A.P.T. Rules, the Ministry of Law, Justice and Human Rights, vide Notification S.R.O.747(1)/98, dated 01.07.1998, laid down the method of appointment against the post of Assistant Registrar . The method of appointment against the post of the Assistant Registrar prescribed in the said notification is as follows:- "The post of Assistant Registrar shall be filled in by initial appointment and failing that by transfer ."
10. Paragraph-4 of the said notification provides that the appointment by transfer shall be made by selection from amongst the persons holding appointment on a regular basis under the Federal Government in the same basic pay scale in which the posts to be filled exists, provided that the person concerned possesses the qualifications and experience prescribed for initial appointment or promotion to the post concerned.
11. The representative of the Ministry of Law candidly admitted that no process was initiated at any stage for the appointment of Assistant Registrar , Customs Appellate Tribunal, to be made by initial appointment. Mr. Sajid Afzal, who was an Assistant in the Ministry of Law and Justice, was requested by this Court on 26.09.2017 to inform the worthy Secretary , Ministry of Law and Justice, to depute a senior official of the Ministry of Law and Justice to inform the Court as to when the process for the appointment of Assistant Registrar in compliance with the Notification S.R.O. 747(1)/98, dated 01.07.1998, shall be initiated. There was no response given to the said query .
12. There is no dispute as to the qualifications of respondent No.2 for appointment as Assistant Registrar , Customs Appellate Tribunal. The sole question that needs to be determined is whether respondent No.2's appointment has been made in compliance with the method of appointment prescribed in the said notification dated 01.07.1998. The said notification provides that the post of Assistant Registrar shall be filled in by initial appointment and failing that by transfer . The import of the said requirement is that if the process for the initial appointment does not result in the selection of a suitable person with the requisite qualifications for appointment as Assistant Registrar , only then can the post of Assistant Registrar be filled by transfer . Since it is an admitted position that no steps, whatsoever , were taken to fill the post of Assistant Registrar by initial appointment, therefore, appointment of Assistant Registrar could not be made by transfer . The employment of the words "failing that", in the said notification implies that an appointment by transfer can only be made if the process initiated for filing the post of D Assistant Registrar by initial appointment is not successful. Indeed, paragraph-4 of the said notification provides the procedure for the appointment by transfer , but the same does not override the explicit requirement in the said notification that an appointment by transfer can be made only if an appointment by initial appointment cannot be made. If the contention of the learned counsel for the respondents is to be accepted then the words "the post of Assistant Registrar shall be filled in by initial appo intment" in the said notification would be rendered redundant. Since no effort was made by the Ministry of Law, Justice and Human Rights to fill the post of Assistant Registrar , Customs Appellate Tribunal, by initial appointment, the appointment of respondent No.2 to the said post by transfer is contrary to the requirements of the said notification dated 01.07.1998, and therefore, unlawful.
13. In the case of Muhammad Ali v. Province of Khyber Pakhtunkhwa (2012 SCMR 673), it has been held inter alia that the principles of good governance required every appointment in the government service to be made in accordance with the relevant rules and completion of codal formalities. Additionally , in the case of Mubashir Raza Jaffari v. Employees Old-Age Benefits Institution (2014 SCMR 949), it has been held inter alia that appointments to public offices were to be made strictly in accordance with the applicable rules and regulations. In the case at hand, I do not find respondent No.2's appointment to have been made strictly in accordance with the method of appointment for the post of Assistant Registrar prescribed in the said notification dated 01.07.1998.
14. In view of the above, both the petitions are allowed , and the appointment of respondent No.2 as Assistant Registrar , Customs Appellate Tribunal (BPS-16) by transfer is declared as unlawful. Furthermore, the Ministry of Law, Justice and Human Rights, is directed to initiate the process of appointment of Assistant Registrar by initial requirement in accordance with the said notification dated 01.07.1998. There shall be no order as to costs.