Dr. Khalil-ur-Rehman Shaikh, Member. This service appeal has been preferred under Section 4 of the Sindh Service Tribunals Act, 1973 by the appellant being aggrieved and dissatisfied against the notification dated 16.05.2019.
2. The brief facts of the case are that the appellant was appointed as an officiating Mosque School Teacher (BS-7) vide office order dated 16.12.1987 w.e.f. the date he actually resumed charge. He was appointed vide order dated 26.05.1990 as untrained H.S.T. Special Education (BPS-15) in Bureau of Curriculum Wing, Sindh, Jamshoro. Thereafter the appellant was promoted to the post of Subject Teacher (BPS-17) Bureau of Curriculum and Extension Wing Jamshoro vide notification dated 11.04.1995 issued by Education Department and then promoted to the post of Assistant Professor (BS-18) vide notification dated 31.03.2008 in Special Education Department.
3. The appellant was appointed by-transfer vide notification dated 06.06.2012 against the vacant post of Senior Instructor (BS-18) in Provincial Institute of Teacher Education (PITE) Shaheed Benazirabad. Services General Administration and Coordination Department (referred heretoafter as "SGA&CD") issued notification dated 17.12.2013 whereby on the recommendations of the Provincial Selection Board No. II and with the approval of the competent authority i.e. Chief Minister, Sindh the appellant in capacity of Deputy Director (BS-18) was promoted to the post of Director (BS-19), PITE Sindh Nawabshah on regular basis.
4. In 2019, the SGA&CD moved a summary for Chief Minister Sindh, on a complaint of Dr. Mir Hassan Dahri (Respondent No. 06), proposing the repatriation of the appellant from PITE to his parent department i.e. Special Education Department. In the said summary, the appellant was shown as Director (BS-19) PITE and holding look after charge of the post of Director General (BS-20) PITE, Sindh Shaheed Benazirabad. The SGA&CD issued notification dated 16.05.2019 whereby the services of the appellant were repatriated to his parent department i.e. Special Education Department (now Department of Empowerment of Persons with Disabilities) in pursuance of the judgment dated 12.06.2013 passed by the Hon'ble Supreme Court of Pakistan in Criminal Original Petition No. 89/2011 and judgment dated 05.01.2015 in Civil Appeal No. 404/2011 etc. The appellant filed departmental appeal to the Respondent No. 01 on 12.06.2019 which remained undecided. He then filed instant service appeal on 09.10.2019.
5. The Respondent No. 01 has adopted the written statement filed by the Respondent No. 04 i.e. Secretary to Government of Sindh, Department of Empowerment of Persons with Disabilities.
6. The Respondents No. 02 & 05 in their joint written statement have submitted that the complaint submitted by Dr. Mir Hassan Dahri was referred to the Respondents Nos. 03 & 04 for comments/views vide letter dated 30.05.2017. The Respondent No. 04 vide letter dated 22.05.2017 requested that the absorption of the appellant in PITE may be treated as cancelled/withdrawn and he may be repatriated to his parent department i.e. Special Education Department whereas the Respondent No. 03 vide letter dated 09.08.2018 commented that the appointment by transfer of the appellant from the post of Assistant Professor (BS-18) Special Education Department to the post of Senior Instructor (BS-18) in PITE is hit by the judgment passed by the Hon'ble Supreme Court of Pakistan in Civil Review Petition No. 193/2013 and requested that there is no objection if the services of the appellant is repatriated to his parent department. They have further submitted that the appellant had also filed C.P. No. D-8356/2018 before the Hon'ble High Court of Sindh which was found by the Hon'ble Court to be wholly misconceived and was dismissed in amine vide order dated 18.12.2018. They have further submitted that in pursuance of the judgment dated 12.06.2013 passed by the Hon'ble Supreme Court of Pakistan in Criminal Original Petition No. 89/2011 & others and the judgment dated 05.01.2015 passed in Civil Petition No. 404/2011, etc and Review Petition No. 193/2013, etc and with the approval of the Respondent No. 01, the services of the appellant were repatriated to his parent department. They have also submitted that the opinion of Law Department referred by the appellant does not relate to his case and recruitment rules of the post of Senior Instructor (BS-18) of PITE, clearly mention the appointment to the said post 40% by initial appointment and 60% by promotion amongst the Lecturers in BS-17 having certain experiences or by transfer having minimum experience of two years as Senior Instructor and it does not mean that appointment can be made by transfer as permanent absorption.
7. The Respondent No. 03 in his written statement has submitted some facts relating to the appeal.
8. The Respondent No. 04 in his written statement has submitted that the Department of Empowerment of Persons with Disabilities has protected the seniority of the appellant in officers of BS-18 vide No. SO(Admin-II)/(DEPD)/Seniority/112/2019 dated 26th August dated 26.08.2019 and after recommendation by PSB-II the appellant had been promoted from the post of Assistant Professor (BS-18) to the post of Principal/Associate Professor/Director/Regional Director (BS-19) vide notification dated 07.04.2020 and corrigendum dated 15.06.2020. He has further submitted that in compliance to the order of the Hon'ble Supreme Court of Pakistan the services of the appellant including other such employees were repatriated to their parent departments.
9. Dr. Mir Hassan Dahri filed an application under Order I Rule 10(2), C.P.C. Read with Section 151, C.P.C. for joining him as respondent. The application was allowed and he was joined as Respondent No. 06 vide this Tribunal's order dated 17.02.2022. Thereafter, he adopted affidavit filed in support of the application as written statement. He has submitted that he was appointed as Senior Instructor (BS-18) in PITE through Sindh Public Service Commission and the appellant was a Mosque School Teacher and a non-commission employee was appointed by transfer as Senior Instructor in PITE from another department by misrepresenting his original cadre Assistant Professor. He has further submitted that he filed representation to the Respondent No. 02 and Respondent No. 03 to repatriate the appellant to his parent department as his appointment by transfer was hit by the Hon'ble Supreme Court of Pakistan through judgment in Cr. Org. Petition No. 89/2011 & Others and the judgment dated 05.10.2015 passed in Civil Appeal No. 404/2011 etc and under Civil Review Petition No. 193/2013. The Respondent No. 03, Special Education Department and the SGA&CD recommended the repatriation of the appellant to his parent department. The appellant challenged the recommendations in the High Court of Sindh through CP No. D-83.56/2018 on the grounds that his services may be retained at PITE Sindh Nawabshah. The appellant concealed the judgment of Hon'ble High Court of Sindh, passed in the said petition, from this Tribunal. The jurisdiction and the appropriate forum regarding this appeal, after the decision of the Hon'ble High Court of Sindh is to be confirmed, however, this service appeal is also time barred. He has also referred the Para Nos. 09, 12, 13, 16 to 24 of the Judgment passed by the Honourable Sindh High Court stating rule position relating to the case of the appellant. The judgment was submitted to the respondents for implementation and repatriation of the appellant to his parent department.
10. Heard the arguments. The learned counsel for the appellant contended that the appellant was appointed by transfer in BS-18 under Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in PITE. The Hon'ble Supreme Court of Pakistan in case reported as 2015 SCMR 456 has held that a Civil Servant appointed by transfer from one cadre to non-cadre is to be repatriated after certain time after observing Rules 3, 4, 6, 7 & 8 of the Rules ibid. The summary for C.M. Sindh regarding illegal absorption/appointment by transfer, posting and transfer was submitted containing or on the basis of misguiding the facts. While referring the recruitment rules for the post of Assistant Professor (BS-18) he contended that the appellant falls in category (OR) iii of column 3 of Sr. No. 3 of the recruitment rules for the post of Senior Instructor (BS-18) Male or Female notified on 28.07.2011. The appellant was appointed by transfer in PITE without any fixed term whereas the Honourable Supreme Court of Pakistan has held that appointment by transfer shall be made for specific period. Regarding allegation of concealment of proceedings before the Hon'ble High Court of Sindh by the respondents, the learned counsel for the appellant contended that these allegations are immaterial as the jurisdiction of the Hon'ble High Court of Sindh and this Tribunal has been exclusively determined in the aforementioned judgment of the Hon'ble Supreme Court of Pakistan. The case of the appellant is identical to the case of Mr. Mashooq Ali Samoo who is working as Lecturer vide letter dated 02.01.2023 in PITE and appellant may be given same treatment. He further contended that the case of the respondent No. 6 has no match with appellant who was appointed after his appointment.
11. Dr. Mir Hassan Dahri, respondent No. 6, contended that he was appointed in BS-17 in PITE on the recommendation of Sindh Public Service commission whereas the appellant was appointed by transfer from Special Education to PITE. Appellant was appointed as Senior Instructor but he has never served as Senior Instructor as he was serving as Assistant Professor (BS-18) at the time of appointment by transfer. The appellant violated the recruitment rules of PITE referred by the learned counsel for the appellant. The appellant was wrongly inserted in seniority list and was promoted as Deputy Director (BS-19) within two years after promotion to BS-18. In the light of judgment of the Hon'ble Supreme Court of Pakistan as mentioned above the appellant cannot be retained in the PITE.
12. Asst: A.G. submitted that the repatriation of the appellant in the light of judgment passed by the Hon'ble Supreme Court of Pakistan is as per rules. Promotion of appellant from BS-18 to BS-19 in PITE was not as per rules.
13. Before proceeding further, it is imperative to reproduce the recruitment rules for the post of senior Instructor in PITE notified on 28.07.2011 as under: Sr.
No.NAME OF POST WITH BSMETHOD OF APPOINTMENTQUALIFICATION AND EXPERIENCE FOR INITIAL APPOINTMENTAGE LIMIT MIN. MAX
1. 2. 3. 4. 5.
3. Senior Instructor (BS-18) Male or Femalei) Forty percent by initial appointment AND ii) Sixty percent by promotion from amongst the Lecturers (BS-17) in the relevant subject having atleast five years' Experience in (BS-17) as such on seniority-cum-fitness basis; OR
(iii) By transfer having minimum two years' experience as Senior Instructor in (BS-18)Master Degree in the relevant subject with M.Ed or MA (Education) both atleast in Second Division from a recognized university with atleast five years' experience in the public sector institution or organization recognized by Government of Sindh30 45 These recruitment rules clearly mention that a person who has served as Senior Instructor (BS-18) for minimum two years is eligible for appointment by transfer. The appellant was serving as Assistant Professor (BS-18), as evident from notification dated 31.03.2008, and was not serving as Senior Instructor (BS-18) at the time of appointment by transfer. Astonishingly he was shown as Senior Instructor (BS-18) Special Education, Education and Literacy Department vide notification dated 6th June, 2012 at the time of appointment by transfer in PITE. The record made available before us is silent on the point that how the appellant became Deputy Director (BS-18) in PITE as he was promoted to the post of Director (BS-19) PITE Sindh Nawabshah from the post of Deputy Director (BS-18) vide notification dated 17.12.2013.
14. The Honourable Supreme Court of Pakistan passed Judgment dated 12.06.2013 in Criminal Original Petition No. 89/2011 and other and Judgment dated 05.01.2015 in Civil Appeal No. 404/2011 etc and Civil Review Petition No. 193/2013 and in pursuance of these judgments the appellant was repatriated to his parent department vide notification dated 16.05.2019. After about four years of passing the judgments by the apex Court its directions/orders were complied with by the respondents and such activity took place on the complaint submitted by the Respondent No. 6. If he had not made complaint probably the appellant might have enjoyed benefit of appointment by transfer for more time. The Government functionaries including the Courts established within the territorial jurisdiction of the constitution of the Islamic Republic of Pakistan are bound under Article 189 and Article 190 of the constitution 1973 of Islamic Republic of Pakistan to comply with the orders/directions of the Honourable Supreme Court of Pakistan once passed. The departments/offices are not supposed to wait for the submission of a complaint.
15. At the time of the repatriation, the appellant was holding look after charge of Director General (BS-20), PITE where as he was himself in BS-19. It is appropriate to reproduce the notification dated 16.05.2019 as under: NO.SOIII(S&GAD)3-63/2017 GOVERNMENT OF SINDH SERVICES, GENERAL, ADMINISTRATION AND COORDINATION DEPARTMENT Karachi, dated 16 May, 2019 NOTIFICATION In pursuance of the judgment dated 12.06.2013, passed by the Honourable Supreme Court of Pakistan in Criminal Original Petition No. 8912011 and Others cases and the judgment dated 05.01.2015, passed in Civil Appeal No. 404/2011, etc and Civil Review Petition No. 19312013, etc and with the approval of Competent Authority, the services of Mr. Qamar Shahid Siddiqui, Senior Instructor (BS-18), Special Education, Education and Literacy Department, appointed by transfer as Senior Instructor (BS-18) in Provincial Institute of Teacher Education (PITE) Shaheed Benazirabad, presently posted as Director (BS-19), holding look-after charge of the post of Director General (BS- 20), Provincial Institute of Teachers Education (PITE) Sindh, Shaheed Benazirabad, are hereby repatriated and he stands relieved to report to his parent department i.e: Special Education Department (now Department of Empowerment of Persons with Disabilities).
MUMTAZ ALI SHAIKH CHIEF SECRETARY SINDH NO.SOIII (S&GAD)3-63/2017 Karachi, 16th May, 2019 A copy is forwarded to:-
1. The Registrar, Hon'ble Supreme Court of Pakistan, Islamabad,
2. The Advocate General, Sindh Karachi.
3. The Chairman, Planning and Development Board, Sindh Karachi,
4. The Additional Chief Secretaries (All), Government of Sindh, Karachi.
5. The Senior Member, Board of Revenue, Sindh, Karachi.
6. The Principal Secretary to Governor, Sindh, Karachi.
7. The Secretary to the Chief Minister, Sindh, Karachi.
8. The Administrative Secretaries (all) Government of Sindh.
9. The Chairman, C.M's Inspection, Enquiries and Implementation Team, Karachi
10. The Secretary, Provincial Ombudsman, Secretariat, Karachi,
11. The Chairman, Enquiries and Anti-Corruption Establishment Sindh, Karachi,
12. The Accountant General Sindh, Karachi,
13. The Commissioners (all) in Sindh
14. The Deputy Secretary (Staff) to Chief Secretary Sindh, Karachi,
15. The Publisher, Sindh Govt. Printing Press, Karachi.
16. The Private Secretary to Chief Secretary, Sindh, Karachi.
17. Officer concerned
18. Office order file (ABDUL RAZAQUE SAAND)
SECTION OFFICER-III The words "Look After Charge of Higher Post" are foreign to the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. The Rule 8-A (1) of the Rules, 1974 ibid permits to appoint a civil servant on acting charge basis to fill a post reserved for departmental promotion. The said rule is reproduced as under: "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 cadre 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."
The Rule 8-A (4) of the aforementioned rules provides as under: "Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months current charge appointment may be made according to the orders issued from time to time."
However, allowing working on acting charge basis for indefinite period is against the spirit of timely progression of a civil servant in his cadre or service. The Honourable Supreme Court of Pakistan vide its judgment dated 30.12.2020 passed in C.As. Nos. 52-K to 71-K/2022, the Province of Sindh through Chief Secretary and others vs Ghulam Shabbir and others held as under: "To stretch or continue acting charge or adhoc arrangement on own pay scale (OPS) for an extensive period rather than making timely appointments or filling the post by promotion according to the ratio or quota, as the case may be, creates misgivings and suspicions and such a tendency is highly destructive and deteriorative to the civil servant service structure."
Thus, assigning "Look After Charge" of higher post to the appellant is without force of law and void ab initio. However, powers exercised by the appellant being Director General (BS-20) and its effect shall be deemed discharged legally to avoid any legal implications.
16. The learned counsel for the appellant has contended in his arguments at Bar that the Honourable Supreme Court of Pakistan has held that appointment by transfer shall be for specific period. The relevant part of para-114 of the said judgment is reproduced as under: "Rule 9 (1) does not confer permanent status on Civil Servant. on his appointment by transfer nor it contemplates his absorption in the transferee Department as a consequence of his appointment...
Rule 9(1) cannot be used as a tool to allow horizontal movement of a civil servant from his original cadre to another cadre against scheme of the Act and the Rules of 1974. The term "transfer" has to be interpreted in its common parlance and is subject to the limitations contained in Rules 3, 4, 6, 7 and 8 of the Rules 1974. Any appointment by transfer under Rule 9(1) has to be for a fixed term, and, on completion of such term, the Civil Servant has to join back his parent department."
The Honourable Supreme Court of Pakistan further held as under: "A Civil Servant who is to be appointed by transfer has to appear before the Departmental Promotion Committee or the Provincial Selection Board which will consider his eligibility, qualification and such other conditions applicable to the post as laid down in the recruitment rules of the department to which his transfer is to be ordered."
The notification dated 06.06.2012 indicates that appointment of the appellant by transfer was ordered with the approval of competent authority i.e. Chief Secretary, Sindh. The criteria of evaluation of eligibility of the appellant through DPC or PSB, as the case may be, fixed by the Honoruable apex Court, mentioned above, was not complied with. The said notification also does not indicate any specific period for appointment of the appellant by transfer, thus, it is in contravention to the orders of the Honourable Supreme Court of Pakistan. Hence, the appellant was rightly repatriated to his parent department.
17. The learned counsel for the appellant contended that a Civil Servant appointed by transfer from one cadre to non-cadre is to be repatriated after certain time after observing Rules 3, 4, 6, 7 & 8 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, The Honourable Apex Court has held, as mentioned at pars-16 of this judgment that "the term" transfer "has to be interpreted in its common parlance and is subject to the limitations contained in Rules 3, 4, 6, 7 and 8 of the Rules, 1974". The Rule-3 and Rule-4 of the Rules 1974 ibid relate to mode of appointments to posts and competent authority to make appointment. The Rule 6 of the rules ibid pertains to the powers of appointing authority in case he does not accept recommendations of Departmental Selection or Department Promotion Committee. The Rule-7 of the rules ibid deals with procedure of appointment to various posts and treatment with civil servants who declines to accept promotion in writing. The Rule-8 provides, "Persons as possess such qualifications and fulfill the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Provincial Selection Board, as the case may be". To sum up, the spirit of the aforementioned rules is that appointment by transfer of a civil servant possessing requisite criteria of a post is to be made by the competent authority on the recommendations of the concerned forum (s). This exercise is to be conducted at the time of appointment by transfer and not at the time of the repatriation. Thus, the contention of the learned counsel for the appellant is not sustainable.
18. The contention of the learned counsel for the appellant regarding similar treatment to the appellant as given to Mr. Mashooq Ali Samoo who is working as Lecturer vide letter dated 02.01.2023 in PITE. A copy of such letter is not available on the record. However, illegal action cannot be validated under the garb of the Principle of Consistency or Equal Treatment. The Article 25 (1) of the Constitution 1973 of Islamic Republic of Pakistan provides, "All citizens are equal before law and are entitled to equal protection of law." The Honorable Supreme Court of Pakistan held vide its Order dated 09.01.2023 in Civil Petitions No. 688 & 689 of 2020, Muhammad Yasin and others vs. the Director General, Pakistan Post Office, Islamabad and another as under: "Article 25 of the Constitution guarantees the equal protection of law, not the equal protection of lawlessness, by declaring that all citizens are equal before law and are entitled to equal protection of law. An unlawful act, therefore, cannot be made a standard for enforcing the right to equality guaranteed by the Constitution. One illegality cannot be allowed to be compounded by applying the right to equality. The extension of the right to equality to the acts done in violation of law would amount to perpetuating previous unlawful acts and motivating the commission of further illegalities."
19. In view of the above discussion this tribunal do not find any reasonable ground to interfere in the Notification dated 16.05.2019 regarding repatriation of the appellant to his parent department, hence, appeal is dismissed.