' NAZIM HUSSAIN SIDDIQUI, J.---The main question that arises for determination in this petition is whether the transfer of the petitioner from the post of Estate Manager to O.S.D. Is contrary to the provisions of sections 21, 23 and 24 of the K.P.T. Act, 1886, as under section 21 there is a schedule of posts of Officers and appointment can be made by KPT only against such posts and said schedule does not include any post described as O.S.D.
' Above question has arisen in the following circumstances: ' The petitioner on 6th April, 1976 was appointed against the scheduled post of Estate Manager in BPS-19. It is alleged that the Management of the respondent No,1 was against the petitioner and he was illegally reverted to the next lower post i,e, Grade BPS-18 with effect from 31-1-1979. He challenged the aforesaid order and the matter was finally decided by the Hon'ble Supreme Court, being Civil Appeal No,94-K of 1982, whereby the order dated 23-1-1979 passed by the then Secretary, Ministry of Communications, was set aside and the appeal of the petitioner was allowed.
Thereafter, the petitioner was confirmed on 25-6-1986. It is alleged that due to mala fide intention he was transferred to the post of O.S.D. On 22-8-1990, he filed the Suit No,413/90 in this Court against the respondent in which initially and ad interim restraining order was passed, which on service of notice, was confirmed. Consequently, by consent the suit was decreed as prayed, vide order dated 20-9-1990. Thereafter, as per letter dated 1-12-1990 of the respondent No,1, the transfer order was cancelled and the petitioner was restored as Estate Manager.
' In pursuance of the Resolution No,586, dated 22nd January, 1992 and with the approval of Government vide Letter No,3(28)/90-B.II, the petitioner was made O.S.D. In his own pay Scale in BPS
19. It was also resolved by the Board of the respondent No,1 that the charge of the post of Estate Manager be given to Mr.Zaffar Hussain Rizvi, Deputy Estate Manager, who is the respondent No,3 in this matter.
' The respondent No,1 has admitted that the schedule of officers and servants, as required under section 21 of the Act, is prepared and sanctioned by its Board. It is also an admitted fact that in the schedule the post of O.S.D. Is not specified. According to this respondent, the board under section 22 of the Act, has framed regulations for the purposes mentioned in this section. Specific plea has been taken that under Resolution No,727 dated 11-12-1942 the regulations/rules were approved and sanctioned by the then Government of India (Department of War Transport) by their Letter No,12- P(20) 37, dated 2-2-1943. According to the respondent, rule 5 of said rules authorises the Board to adopt the Fundamental Rules of the Central Government, as contained in the Civil Establishment Code, complied by O&M Division Public Administration Research Centre, Government of Pakistan, 1983. Reliance has been placed at S.I. No,10 (Page No,49) of the said Code, which provides procedure for creation of posts of Officer as O.S.D.
' In order to appreciate the respective contention of the parties, it would be advantageous to reproduce here relevant subsections of sections 21, 22 and 23, section 24 of the Act, the Resolution No,727, Rule 5 of K.P.T. Digest of Pay, Allowances and Leave Rules, and S.I. No,10 of the Civil Establishment Code, which are as follows:- Sec ion 21. ---The Board shall from time to time prepare and sanction a schedule of the Staff of Officers and Servants whom they shall deem it necessary and proper to maintain for the purposes of this Act. Such schedule shall also set forth the amount and nature of the salaries, fees and allowances which the Board sanctions for each such officer or servant.
' Provided.--....................
Section 22 (8).---The Board may with the prior sanction of the Federal Government frame regulations:- ' For regulating the conduct and the terms and conditions of service of the officers and servants of the Board, and all other service matters, including recruitment, promotion, inquiries, punishments and appeals.
Section 23 (1).---Subject to the provisions of the regulations made under section 22 and of the schedule of officers and servants for the time being in force, all administrative powers including those of appointing, promoting, suspending and punishing the officers and servants of the Board and of grant of leave to them shall be exercised by the Chairman in the case of persons drawing pay in the scale of which the maximum does not exceed five hundred rupees and in very other case by the Board: ' Provided that the Chairman may by order in writing delegate all or any of his powers under this subsection to the respective Heads of Departments or such other officer as he may thinks fit.
Section 24.---Every order or regulation made by the Board in respect of Heads of Departments, or in respect of officers holding posts in the scale of which the maximum is not less than eleven hundred rupees shall be subject to the previous approval of the (Federal Government).
727. Resolution.---The Leave Rules as redrafted by Government approved and should be submitted formally to them for sanction along with the amendments suggested by the Secretary.
DIGEST OF PAY. ALLOWANCES AND LEAVE RULES OF KARACHI PORT TRUST ' Rule 5.---In any case or matter not specifically provided for in these rules or in subsequent amendments thereof, the ruling in the Fundamental Rules of the Central Government will, generally, and in so far as they can be adopted to Board's requirement be held to apply, provided that any matter in the said rules left to the discretion, option, special rule or order of the Central Government shall be decided by the Board.
S.I.N0.10 OF THE CIVIL ESTABLISHMENT CODE Procedure for creation of posts of Officers on Special Duty and making appointment thereto.---A question had arisen recently whether a procedure should be laid down for creation of posts of O.S.D. And making appointments to such posts. The posts of O.S.D. May be created for the following reasons:--
(1) Government servants (member of a regularly constituted service or otherwise permanent) waiting for posting orders.
(2) Deputation of Government servant for duty or course of instruction or training in Pakistan or abroad, for a period exceeding two months, in accordance with the instructions contained in the Ministry of Finance O.M. No, 3005-EG/52, dated 7-5-1952 (Annexure).
(3) For doing work of a special nature, e.g., examination and/or implementation of reports of Commissions/Committee, etc.
(4) For overcoming technical difficulties.
2. In all such case concurrence of the Ministry of Finance/Financial Advisor concerned will be necessary before the posts are created.
3. As to the question of appointment to such posts, the matter has been considered in consultation with the Federal Public Service Commission and it has been decided that Establishment Division and the Commission need not be consulted in regard to appointment to the posts created for the reasons stated at (1) and (2) above.
4. In regard to posts created for the reasons stated at (3) and (4) above, it has been decided that such posts may be filled by suitable officers either by transfer or by promotion or by direct recruitment on the recommendation of the authority concerned.
5. It has also been decided that the Establishment Division should be consulted before the Ministry of Finance are approached for creating a post of O.S.D. For the reasons stated at (4) above.
6. Apart from the cases as mentioned above, there may be instances in which a temporary Government servant holding the post of O.S.D. May be sent for duty training abroad. It has been decided that in such cases if the temporary Government servant is holding the post with the approval of the Federal Public Service Commission or the Selection Board, no consultation will be necessary either with the Commission or the Establishment Division in the case of deputation for duty, but in the case of deputation for the training the Establishment Division should be consulted.
In the case of officers appointed without consultation with the Commission or Selection Board, the Establishment Division and the Commission both should be consulted before any such officer is deputed for duty or training abroad.
7. All concerned under the Ministries/Divisions may please be informed accordingly.
(Authority.--O.M.No,5 (I)/8/67-DV, dated the 19th September, 1963).
Coming back to the question posed at the outset of the judgment, it is noted that admittedly in the schedule prepared under section 21 of the Act, the post of O.S.D. Is not specified. Therefore, the transfer of the petitioner to the unscheduled post is in violation of the Act and Rules made thereunder. It is, however, noted that transfer to a scheduled post in the same cadre would be justified as every officer is liable to serve any where unless he has been recruited specifically to serve in a particular area or region.
' Mr. S. Hamid Hussain learned counsel for the respondents strenuously argued that, by virtue of Rule 5 quoted above, the Civil Establishment Code is applicable and the respondents are competent to post the petitioner as O.S.D. We are not satisfied with this contention for various reasons. Firstly, the Resolution No,727 is about leave rules and it has nothing to do with the transfer.
Secondly, the Karachi Port Trust Digest of Pay, Allowance, and Leave Rules shows that basically Rules 3, 4 and 5 are for salaries and allowance. Even Rule No,5 leaves it to discretion of the Board to adopt the Rules according to its requirements. Nothing is specifically said in this Rule regarding the scheduled or unscheduled post. The scope of this rule cannot be enlarged to the extent of modifying and substituting the provisions of section 21. As per section 22(8) of the Act, the Board may with the prior sanction of the Federal Government frame regulations for regulating the conduct and the terms and conditions of services of the officers and servants of the Board. No regulations has been brought to our notice by virtue of which an officer or servant of the respondent could be posted against unscheduled post.
' The creation of the post of O.S.D. Depends upon conditions enumerated in S.I. No, 10 quoted above.
There is nothing on record to suggest that respondent ever approached to the concern authorities for the creation of such post. Besides, the question of creation of the post of O.S.D. Was considered by the Federal Government as per Letter No, OM No, 5(1)/8/67D.V. Dated 19th September, 1968.
Therefore, it could only be adopted by the Board, by a regulation framed thereafter. It is not the case of the respondent No,1 and nor it could be, that all laws, rules, and instructions relating to the terms and conditions of Federal Civil Servants would automatically apply to its Officers.
' Learned counsel for the respondent also argued that the Impugned Order specially provides that the petitioner was made O.S.D. At his own pay scale and no prejudice was caused to him. Since the post of O.S.D. Does not exist in the establishment of the respondent No,1 he could not be posted as such.
Learned counsel for the respondent next contended that Impugned Order was passed on 22-1-1992 and this Petition was presented on 8-10-1992, as such, it suffers from laches. Suffice it to say that principle of laches will not apply in case of an order, which is ab initio illegal.
Accordingly, we allow this Petition with no order as to costs and hold that the transfer of the petitioner from the post of Estate Manager to O.S.D. Is illegal and without lawful authority.