IFTIKHAR MUHAMMAD CHAUDHARY, J.- In this Constitutional Petition, following relief has been prayed for:- "PRAYER.
It is prayed that: a. Learned Court may be pleased to declare that impugned Notification dated 26.10.1991 has been issued without lawful authority and the same is of no legal effect; b. Learned Court may be pleased to issue writ of quo-warranto calling upon Respondent No.5 to show by what authority he holds the appointment of Grade-19 in Balochistan Civil Service (Executive Branch)."
2. It is the case of petitioners that Respondent No.5 Col.Muhammad Hashim Baloch, be called upon to show as under what authority, he holds the appointment of Grade-19 in Balochistan Civil Services (Executive Branch) as the Notification, referred to in the prayer clause has been issued without lawful authority. It would be appropriate to reproduce herein-below the Notification for sake of convenience:- "NOTIFICATION.
No.S-H-19-59/89-S&GAD. Colonol Muhammad Hashim Baloch, an Army Officer of Government of Pakistan who Is on deputation to Government of Balochistan and is posted as Commissioner, Kalat Division, is hereby inducted, as a special case, in the Balochistan Civil Services (Executive Branch) in B-19 and is placed at the top of seniority list of BPS-19 officers of the service with immediate effect.
2. The method of recruitment as laid down in rule 5 of the Balochistan Civil Service (EB) Rules 1984, is hereby relaxed under the provisions of rule 12 of the Service Rules ibid for the purpose of induction of Colonel Muhammad Hashim Baloch.
3. The induction of Colonel Muhammad Hashim Baloch, will be personal to him and cannot be quoted as as precedent in future."
3. Precisoly nothing the facts of the case are like this. The service of Respondent No.5 Colonel Muhammad Hashim Baloch were acquired by the Provincial Government of Balochistan on deputation basis from the Ministry of Defence during the period when he was in active service of the Pakistan Army. As such, he joined service in Executive Branch of the Provincial Government in BPS- 19 with effect from 1st April, 1989, initially for a period of three years vide letter No. F.2/40/D- 24(C-IV)/88, issued by Govt, of Pakistan, Ministry of Defence, Rawalpindi, dated 1st March, 1989.
Subsequently on his promotion to the rank of Colonel, a fresh order of deputation of his service to the Provincial Government dated 1st November, 1990, was issued by the Government of Pakistan, Ministry of Defence, for another period of three years. It was also mentioned therein that on deputation, the Officer will be governed by the terms and conditions as laid down in JS1-4/85 as amended by JSI-12/35. During the period of his deputation on 04th December, 1990, the then Chief Minister of Balochistan (Mir Taj Muhammad Khan Jamali) wrote a D.O. Letter to the Advisor to Prime Minister for Defence, Government of Pakistan, Ministry of Defence, Rawalpindi Contents whereof are reproduced herein-below "Subject:- Absorption on permanent basis of Col. M.Hashim into Balochistan civil Service.
Dear Sir, This is to request on behalf of Balochistan Government that the services of Col. M .Hashim be placed from the Pakistan Army at the disposal of Government of Balochistan by inducting him in the District Management Group.
The above mentioned officer has already been on secondment with the Provincial Government since March, 1989 and his conduct of service has been excellent.
In the interest of better and clean administrative set up and public service it is requested that Ministry of Defence may very kindly please accede to this request.
With best wishes."
4. In response to the above correspondence, the Advisor to Prime Minister for Defence, vide letter dated 06th January, 1991, informed the Provincial Chief Minister that the induction of Armed Forces Officers in the rank of Colonel is not allowed under the Rules, (underlining is ours) they however, can be re-employed on retirement/release from the defence service. It was further pointed out therein that the Provincial Government can induct Colonel Mohammad Hashim in the' Provincial Civil Service, if they so deemed fit, subject to his release from the army. Contents of this D.O. Letter are also reproduced herein-below:- "Kindly refer to your D.O.No.PS-CM/1990,202-3/l(25)/1776 dated 04 Dec 1990 seeking inducting of Colonel Mohammad Hashim in the District Management Group and placement of his services at the disposal of the Government of Balochistan.
2. The induction of Armed Forces officers in the rank of Colonel/equivalent in the Civil service is not allowed under the Rules. They can, however, be re-employed on retirement/release from the Defence Service.
3. The Government of Balochistan could induct Colonel Hashim in the provincial civil service, if they so deem fit subject to his release from the Army. We could request General Headquarters for their no objection to the release of the officer on hearing from you to this effect."
5. Lateron vide D.O. Letter No.PS-CM/91 dated 26th December, 1991, the Chief Minister (Mir Taj Mohammad Jamali) informed the Federal Minister for Defence that the officer (Respondent No.5) has already been absorbed in the Balochistan Civil Service (Executive Branch) as such, he shall be highly obliged, if necessary 'No objection, is obtained from the GHQ, at the earliest. Upon this letter, the Ministry of Defence retired the respondent No.5. With effect from 06th January, 1992 and Provincial Government in this behalf, was duly intimated vide letter No.F\2/40/D-24(C-12)/88 dated 26th January, 1992. As. Such, instant Constitutional Petition has been filed by the petitioners, who themselves are in the Balochistan Civil Service (Executive Branch).
The petitioners have raised two fold question in this Constitutional Petition:- i. The induction of Respondent No.5 (Colonel Muhammad Hashim) has been made by the Provincial Government illegally/contrary to the provisions of Balochistan Civil Services (EB) Rules, 1984, and the policy of Government of Pakistan, regarding induction/re-employment of officers of Armed Forces of Pakistan in Civil Services, in pursuance whereof, Government of Balochistan also framed its on policy under the same subject vide No.SOR(II)92/S&GAD-79 dated 27th June, 1992. ii. The Respondent No.5 had no authority to hold the post of Grade-19 in Balochistan Civil Services (Executive Branch) under the relevant Rules, as such, his services are liable to be dispensed with.
6. Mr. Mohammad Aslam Chishti learned counsel for petitioners contended that the Provincial Government of Balochistan while filing para-wise comments dated 20th January, 1992 to the petition, duly supported by affidavits sworn by the Chief Secretary and Secretary, Services and General Administration Department, respectively had confessed the judgment by admitting the facts mentioned in the petition. Therefore, the petitioners are entitled for the relief, as has been prayed for.
7. Mr. Ejaz Yousaf Chaudhry, learned Additional Advocate General, however opposed the petition and stated that C.M.No.303/94, dated 19th April, 1994, has been filed by him on behalf of the Chief Secretary and Secretary, S&GAD, i.e. Respondent No.1 and 2, seeking necessary amendment in the Counter affidavit. According to him although the application is being contested by the petitioners, as they filed objections to it, but if it is allowed there would be no admission of facts on behalf of official respondents.
8. It may be noted that the application has not been supported with the affidavit of the concerned officers who filed counter affidavit on behalf of the Government, referred to hereinabove. However this question on will be taken up lateron, at the appropriate stage, because the Additional Advocate General as well as the Deputy Attorney General, Raja Rab Nawaz, on behalf of Provincial and Federal Government, (official respondents,) objected to the maintainability of the petition, claiming its dismissal in view of the bar created by Article-212 of the Constitution of Islamic Republic of Pakistan, 1973.
9. Mr. Basharatullah, learned Counsel for respondent No.5 opposed the petition, both on the question of jurisdiction as well as on merits, re-iterating the same objection which has been raised by the learned Counsel for official respondents. Additionally he emphasised that the object of filing the petition in the nature of quo warranto is indirectly to claim seniority in service by the petitioners over the respondent No.5, as it is reflected from the contents of para-7 and 11 of the petition wherein, it has been noted that on account of induction of respondent No.5 in Balochistan Civil Service (Executive Branch), he has been placed on the top of seniority list of BPS-19. As such, according to Mr. Easharatullah, Advocate, the grievance of petitioner appears to be that they have been shown junior to respondent No.5. Similarly according to learned counsel, the factum of filing representations by the petitioners furnishes another evidence to support his argument, because in para-9 of the representations, in categorical terms, it was stated that assigning the seniority to Colonel Muhammad Hashim in BPS-19 had adversely affected the officers in B-17 to B-19 as well as to the petitioners themselves. Thus, the petitioners have got alternate remedy before the Balochistan Service Tribunal, against the impugned Notification and the petition on this score deserves dismissal.
10. Mr. Mohammad Aslam Chishti, Advocate contended that under Article-199(2)(b)(ii) of the Constitution, this court is competent to enquire from respondent No.5, to show that under what authority, he holds the post in BPS-19 in Balochistan Civil Services (Executive Branch), and to invoke the jurisdiction, it is not necessary for the petitioners to prove their locus standi. Even such petition can be maintained on behalf of any person, because the induction of respondent No.5, is contrary to the relevant rules. According to learned Counsel after the induction of respondent No.5, neither the Provincial Government had issued a Seniority list showing the petitioner junior to him nor they are aware if on the basis of impugned Notification their seniority has been affected therefore, just to show their concern for maintaining the petition, certain averments in this behalf have been made. He also emphasised that even in the representations submitted to the Government, before invoking the Constitutional jurisdiction, prayer was made to withdraw the impugned Notification and in para-9 thereof, it was not exclusively mentioned that petitioners shall adversely be affected, rather it was pointed out that the officers from Grade-17 to 19 would suffer due to the induction of respondent No.5. In this behalf Mr Aslam Chishti, Advocate placed reliance on PU 1992 AJK 07.
11. Raja Rab Nawaz, Deputy Attorney General, referred to PLD 1994 SC 345 and 534, whereas Mr. Basharat-Ullah Advocate referred to PLD 1969 S.C. 42 to substantiate the contentions put for the by them.
12. Under Article-199(2)(b)(ii) of the Constitution, a writ in the nature of quo-warranto even can be maintained on behalf of a person, who is not aggrieved person because the object of this type of Constitutional petition is to confer authority on any person, and subject to the constitution to enquire from a person or persons holding the public office to show his their authority of law, on which, he\they claims to hold such office. Mr. Basharatullah, learned Counsel was of the opinion that a writ of quo-warranto can be refused if court is convinced that the petitioner in order to achieve personal interest has prayed for its issuance. He referred to (PLD 19619 SC 42. Kamal Hussain Vs. Sirajul Hassan). We believe that in the reported case respondent Mohammad Sirajul Haq, the petitioner before the Dacca High Court had an interest in the election of East Pakistan Bar Council, therefore, keeping in view the particular facts of the case, the Hon'ble Supreme Court observed that writ of quo-warranto in particular is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. Whereas in the instant case careful perusal of the contents of petition as well as the representations made by the petitioner to the Government indicates that they had not claimed any where that due to the induction of respondent No.5 in the Balochistan Civil Services (Executive Branch) they will be directly affected. Rather their claim is that the total Provincial Service structure of the Executive Branch right from grade-17 to 19 will adversely be affected. In the case of Masoodul Hassan Vs. Khadim Hussain and another (P.L.D. 1963 SC 203), the Hon'ble Supreme Court has held that writ of quo-warranto in its nature is an information laying against a persons who claimed or usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order that the right to the office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature.
13. Similarly in M.UA.Khan Vs. Rana Mohammad Sultan and another (PLD 1974 SC 228) the Hon'ble Supreme Court held that the writ of quo- warranto could be moved by 'any person who even may not be an aggrieved party, but is holding a public office created by character or statute by the State.
14. A Division Bench of this court in the case of Saifuddin Vs. Chamber of Commerce Balochistan and other (P.L.D. 1982 Quetta 136) has followed the dictum laid down by Hon'ble Supreme Court, referred to hereinabove.
15. The learned Deputy Attorney General however was of the opinion that the Constitutional bar under Article-212 oust the jurisdiction of High Court in the matters relating to terms and conditions of service of any employee. Since in this petition, the notification of the induction of respondent No.5 in the service of Provincial cadre relating to determine his eligibility to hold the post has been impugned, therefore, the petition is not maintainable as is laid down in Syed Badruddin and 10 others Vs, Government of NWFP (PLD 1994 S.C. 345). In this case the petitioner initially filed a civil suit for declaring that the conditions imposed by the Government that officers working in grade-17 in the Agriculture, Forest and co-operative department on the agriculture sice or on the Animal husbandry side, who were simple graduate were not eligible for further promotion unless they acquire higher qualification of M.Sc. Etc. Was illegal and contrary to the service rules. The decree as prayed for was granted. However in appeal, the District Judge concurred with the trial court but in the Civil Revision Petition before the High Court it was concluded that controversy raised in the civil suit relates to the terms and conditions of service as such, the Civil court has no jurisdiction to decide the issue. Whereas in the instant case as for as the petitioners are concerned they have not claimed the relief of their eligibility to hold a particular post Learned Counsel also relied on Mohammad Amir and Ors. Vs. Abdul Haseeb & others (PLD 1994 SC. 534). In this case the matter relates to the promotion of Appraisors in the Custom department. The concerned Officers obtained a favourable administrative order from the then President of Pakistan. In pursuance whereof, a notification dated 15th September, 1992 was issued to implement the same and accordingly seniority list was issued by the department. In consequence whereof, the petitioners were promoted as such, the respondents challenged the Notification in a writ petition before the Sindh High Court which was allowed. Thereafter the matter was taken up before the Hon'ble Supreme Court and with this back ground, it was declared that a service appeal before the Tribunal was maintainable instead of filing a writ petition. This Judgment is also distinguishable in view of the facts of instant case, because here the petitioners are not claiming seniority or promotion over respondent No.5 but their case is that his induction in the Provincial service has been made by the Provincial Government contrary to the relevant rules and due to this reason he has no lawful authority to occupy a public office. In some what identical matter a case came up for consideration before the High Court of AJ. & K titled as Ali Hussain Bukhari and 39 others vs. AJK Government through Chief Secretary and 2 others (PXJ. 1992 AJK 07) wherein it was held that to challenge an appointment, the writ in the nature of quo-warranto can be instituted. It may be noted that section-47 of Interim Constitution Act.1972 is identical to Article-212 of the Constitution of Islamic Republic of Pakistan. It would be helpful to reproduce herein below, the relevant para from the judgment.
This brings me to the last and the most important point as to the relief the Court can grant in this case. The appointment of the respondent, as said earlier, has been challenged on the ground that he is not qualified to hold the post of D.F.O. (Deputy Conservator of Forests). Any person can move the High Court to challenge the unauthorised occupation of a public office. The Court, on any such application, is not to see that the incumbent is holding the office under the order of a competent authority, but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the court has also to see, if statutory provisions are alleged to have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provisions for appointment. A person seeking the redress need not be an aggrieved person. Section 22 (2) (b)(ii) of the Constitution authorises, rather obliges the High Court, to require a person holding a public office to show under what authority of law he claims to hold that office, if the court is of the opinion that, in the public interest the legal position with respect to the alleged usurpation of a public office should be judicially declared."
16. Even otherwise under section-4 of the Balochistan Service Tribunal Act. 1974, a Provincial Civil Servant aggrieved by any final order, whether original or appellate, made by the departmental authority in respect of any of the terms and condition of his service (under-lining is ours) can approach the Tribunal for the redress of his grievance. Thus questioning appointment/induction of any other person does not fall within the jurisdiction of the Service Tribunal In this behalf in the case of I.M. Sherwani and ors. Vs. Government of Pakistan through Secretary Finance Division and others (1991 SCM R 1041) the. Hon'ble Supreme Court while attending the question of ouster of jurisdiction of the courts under Article-212 of the Constitution of Islamic Republic of Pakistan, opined as follows:- "From the above quoted Article-212 of the Constitution and section-4 of the Act, it is evident that the jurisdiction of the courts is excluded only in respect of the cases in which the Service -Tribunal under subsection (1) of section 4 has the jurisdiction. It must therefore follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance the jurisdiction of the courts remained intact."
17. Thus it is held that appointment/induction in the services of provincial employee is not challengable under Article-212 of the Constitutional read with section-4 (1) of the Balochistan Service Tribunal Act. 1974 and no remedy to a person who has an information of illegal appointment is available, except filing Constitution Petition in the nature of quo-warranto under Article-199 of the Constitution, and the relief as prayed for cannot be refused on the ground of bar of the jurisdiction under Article-212 of the Constitution.
18. Before dilating upon the respective contentions of merits it is to be observed that to regulate the procedure of filing the constitutional petition, the Code of Civil Procedure is applicable as it has been held in PLD 1970 SC 01. In the instant case respondent No.1 and 2 in the counter affidavit duly supported with affidavit of the Chief Secretary and Secretary S&GAD, has not denied the induction of Respondent No.5 in the Provincial Service. In as much as it has been admitted by them that the appointment of Respondent No.5 has been made illegally. It is important to lay down hereinbelow the summary of certain facts and admissions made by the respondent No.1 and 2 in the counter affidavit.
19. Paras-1 to 11 of the petition deals in respect of the induction of Respondent No.5 in the Provincial Government Service etc. Which has not been denied by the official respondents. So much so in the reply to para-9 it has been clarified that respondent No5 has not been re-employed but he has been inducted in the Provincial Civil Service (E.B.). Ground-A speaks, that the appointment of respondent No.5 is un-precedental as such, Notification has been issued without lawful authority.
Similarly ground-B mentions that under the Rules of 1984 initially Assistant Commissioners are appointed in B-17, who lateron get promotion to Grade-18 to 20, according to the quota fixed by the Government on the basis of seniority etc. Both these grounds have been admitted in extenso by the official respondents. In ground-C of the petition, it was stated that induction of respondent No.5 could only be made in conformity with the general policy and in view of the violation of same, it was asserted that the appointment of respondent No.5 is unlawful. The official respondents did not challenge the contents of ground-C, except mentioning that his appointment was made in the interest of public service in re-laxation of rules/procedure as laid down in the Service Rules.
Similarly the attack made by petitioner on the induction of respondent No.5 in ground-D and E was also admitted. In reply to ground-E it was stated that reply has already been given in ground-C above. While replying ground-F it was stated that Chief Minister has exercised his powers.
20. In view of the above admissions, the learned counsel for petitioner Mr. Aslam Chishti stated that respondent No.5 has confessed the judgment.
21. On this an application for amendment of counter affidavit was moved being C.M.No303/94 on 19th April, 1994, which was signed by Additional Advocate General and no affidavits of the officers i.e. Chief Secretary and Secretary S&GAD who filed parawise comments on 20.1.1992 were filed.
Wherein relief was claimed that the permission be allowed to insert the word 'not' before the word 'admitted' in reply to ground AB & D for the reasons that it is a clarical\ ommission. The application was seriously opposed by learned counsel for petitioners.
22. We have carefully considered this aspect of the case, It is to be seen . That as it has been pointed out hereinabove, the respondents have also admitted certain important facts while replying paras-1 to 11 of the petition, but no amendment therein has been claimed. Additionally the application was not supported by the affidavits of the incumbents who were holding the charge of the posts of the Chief Secretary as well as Secretary S & GAD on the day when counter affidavit was filed, therefore, it is not free from difficulty to hold that an ommission/error in filing the counter affidavit has been committed in-advertently. Contrary to it, inference can be drawn that in view of the facts and circumstances of the case, important admissions were made by the official respondents intentionally in order to assist the court properly in view of the law, Rules, Regulations, Polices etc. Prevailing at the time, when respondent No.5 was inducted in the service. If in absence of evidence which could have been furnished by filing an affidavit with the amendment application, we would allow the application, it would change the complexion of the proceedings and important admissions made by official respondents in support of the petition will be converted into denial. It is note worthy that after filing of C.M. Application for amendment on 19th April, 1994, case was postponed for more than one occasion but the Additional Advocate General did not bother to obtain affidavits from the concerned Officers and due to this reason, we are justified in drawing inference that officials respondents were not willing to take a stand different from the one, which they had already taken in the counter affidavit. Thus for these reasons, we have decided not to allow the amendment in the counter affidavit. Accordingly C.M. No.303/94 is dismissed.
23. In such view of the circumstances, it is held that respondent No.1 and 2 in the pleadings have not supported the impugned Notification. But surprisingly the Addditional Advocate General argued the case contrary to the stand of the Government and contended that the competent authority on relaxing the Rules has appointed Respondent No.5, as such, the Notification cannot be questioned. He referred to PJLD. 1971 S.C. 846. In this case in absence of Recruitment Rules, k was held that the order of appointment of employee made by the Government, is as effective as Rules.
In our opinion this report is not helpful to the learned Additional Advocate General, because the judgment was delivered with reference to the Constitution of Pakistan, 1962, in which a Constitutional Guarantee was provided to the Civil servants and the Governor, being appointing authority was held competent to make an appointment even in absence of recruitment Rules. He also referred to PUD 1974 SC 228. In this case the appointment of Chief Inspector of Mines was questioned by filing writ of quo-warranto, and the Hon'ble Supreme Court held that candidate who does not possess the degree of post Graduate from a recognized University can be recognized if authorities chartged with duty and power of declaring so, had concurred in accepting postgraduate qualification of a candidate holding degree from such University. In our opinion the facts of this case equally are not applicable on the present case.
24. Much emphasis was laid by Additional Advocate General, and the Deputy Attorney General as well as Mr. Basharatullah, learned counsel for respondent No.5, on the plea that once the competent authority had agreed to relax the condition of appointment of Government employee the validity or otherwise of the appointment order/Notification in writ jurisddiction cannot be questioned. They referred to rule-12 of the Balochistan Civil Services (EB) Rules, 1984, to advance their argument.
25. Mr Aslam Chishti, Advocate, however stressed that the court is always competent to examine, if the relaxation of the relevant rules has been made validly and secondly in a particular case to what extent such relaxation can be granted. He urged that in this case, induction of respondent No.5 in Provincial service was made contrary to the policy Le. Induction, Re-employment of officers of Armed Forces of Pakistan in Civil Posts, in accordance with which, a Armed Officer in the rank of Colonel cannot be inducted in any Civilian service, during the period when he is in the active service of the Defence and at the best if such service is to be made in the interest of General Public, such officer can be reemployed on contract basis after his release from the Defence. According to him to Provincial Government of Balochistan in pursuance of the policy of Federal Government itself had also framed a policy to induct Defence Officers in the civil advice but that policy was also flouted and without getting amended the relevant service Rides, the respondent No.5 was directly inducted on regular basis against a post of Grade-19, which even otherwise, is not permissible because initial recruitment in the Provincial Cadre of Executive Branch is to be made in Grade- 17 on following the method of recruitment. There is no provision under the Rules authorizing the Government to directly appoint an Armed Officer or even a civilian in Grade-19
26. We have very carefully scrutinized the policy framed by the Federal Government, referred to here in above, contained in office memorandum No.1/3/83-CP-6 dated 1st August, 1984. According to Part-I whereof a Selection Board, comprising of a Minister, as Chairman and Secretary, Defence as well as Secretary Establishment, as Members, is to be constituted for the induction/reemployment of Armed Forces Officers in all Pakistan Services, civil services of the Federation and civil posts in connection with the affairs of the Federation. Part-II of the policy lays down that induction in the services shall be made of Captains or equivalent rank, cm regular basis in the District Management Group, Foreign services of Pakistan and Police Group. As for the Officers holding the rank of Majors or equivalent rank are concerned, no quota for their induction has been reserved. However an option has been given to the President for the selection of a limited number of serving Majors or equivalent rank for induction in District Management Group etc. Their cases too are to be processed through selection Board for the approval of President of Pakistan. It may be noted that according to the policy, no induction of serving Officers of Armed Forces in posts in basic pay scale-17 and 18 will be made in any other occupational group or services under the federal or Provincial Governments.
In this behalf, Part-II of the policy is relevant which is reproduced below for reference:- PART II-REGULAR INDUCTION IN SERVICE.
6. Captains or equivalent rank: Serving Officers of the armed forces upto 8 years of commissioned service will be eligible for induction in posts in basic pay scale 17 on regular basis in the District Management Group, Foreign service of Pakistan and Police Group subject to the following maximum annual intake:- L District Management Group 5 ii. Goreign service of Pakistan3 iii. Police group. 2
7. Officers inducted in the three specified groups/services will be adjusted against vacancies allocated to the Province of region to which they belong.
(Para 7 of O.M. Dated 10.2.1980)
8. The officers will receive the same training as is given to the probationers appointed on the results of the competitive examination held by the Federal Public service commission and will be required to pass the prescribed examinations during or on conriusion of the training. Their promotion to higher post will be governed by normal rules, but will be subject to the condition that they have billy passed the prescribed examination during or on conclusion of the training.
(Para 9 of the OM. Dated 10.1980).
9. Majors or equivalent rank: There will be no annual quota for induction in posts in basic pay scale 18 as a regular feature but a limited number of serving majors or equivalent rank may be chosen by the President for induction in District Management Group, Foreign Service of Pakistan or the Police Group. Such cases will be processed through the Selection Board and put up to the President for approval.
10. Such an Officer will be required to undergo till specialised training,, to acquire on the job experience and to clear the departmental examinations prescribed for officers in the occupational group/service to which he is allocated. The officer will be considered for regular posting against a duty post in pay scale 18 only after he has successfully completed the prescribed course.
11. No induction of serving officers of armed forces in posts in basic pay scales 17 & 18 will be made in any other occupational group or service under the federal or provincial governments.
(Clauses Ui & iii of O.M. No.1/19/80-IC (Pt) dated 13.1982.
12. The Defence Services Officers Selection Board will determine the suitability of each officer for allocation to a particular occupational group/service.
(Para 6 of O.M. Dated 10.2.1980).
13. The Officers will be appointed on regular basis and the probationer period shall be deemed to have been waived. The officers will sever their connections with the armed forces from the date of such appointment".
27. It is to be determined that Part-II of the Policy further lays down that Lt.Colonels/equvalent and above Officers of the Armed Forces, who may retire or have retired either after or before the completion of prescribed age or service limit will be eligible for re-employment on contract basis.
Relevant para-15 of the Policy is reproduced herein-under:- "15. Lt Colonels/ equivalent and above: (i) Officers of the rank of lieutenant Colonels or equivalent and above who may retire or have retired either after or before the completion of prescribed age of service limit will be eligible for re-employment on contract for 3-5 years renewable up to the age of superannuation against 10% of annual vacancies in the following four occupational groups/services under the Federal Government:' a. Secretariat Group b. Foreign Service of Pakistan. c. Information Group d. Accounts Group For those officers only who have experience of Finance and Accounts.
(Para 18 of O.M. Dated 10.2.1980 and para 1(b) of O.M. No. 1/22/80- Ind.Cell, dated 29.11.1980). ii. They will also be eligible for appointment on contract against 10% of annual vacancies as may be allocated for them by the Provincial governments".
28. In view of the above policy, even in Federal Services, no Officer of Armed Forces of the rank of Lt.Colonel/equivalent and above, can be inducted in regular cadre.
Similarly the Government of Balochistan, constituted a Selection Board for the re-employment of Defence Service Officers in the Provincial Government, as back as in the year, 1981 and subsequently a formal policy in this behalf was framed, which is reproduced herein below:- "The Government of Balochistan are pleased to constitute a Selection Board as under for the re- employment of the Defence Services Officers under the Provincial Government:-
1. Chief Secretary Chairman. z Additional Chief Secretary (P&D) Member.
3. Member-I, Board of Revenue Members
4. Brigadie ML. Member.
5. Secretary, Health. Member.
6. Secretary, S&GAD. Member/Secretary.
(No. 19-6/80-SOI(S&GAD) dated 10.2.1981)
Subject INDUCTION/RE-EMPLOYMENT OF ARMED FORCES PERSONEL IN CIVIL POSTS UNDER THE PROVINCIAL GOVERNMENT AND AUTONOMOUS BODIES.
The undersigned is directed to refer to the subject noted above and to say that in pursuance of the policy decisions of the Federal Government, the Government of Balochistan has decided that in all the Service/Recruitment Rules governing Appoiatment/Promotion to civil posts under the Provincial Government and Autonomous Bodies 10% of vacancies to be filled in by initial recruitment should be reserved for ex-servicemen at all levels. All the respective Departments would incorporate necessary amendments in their Service/Recruitment Rules, to implement the decision.
(No.SOR(2)92/S&GAD-79, Dated 27th June, 1982).
Subject INDUCTION/RE-EMPLO YMENT OF ARMED FORCES PERSONEL IN CIVIL POSTS UNDER THE PROVINCIAL GOVERNMENT AND AUTONOMOUS BODIES The undersigned is directed to state that in pursuance of the policy decision of the Federal Government, the question of induction/re-employment of Armed Forces Personel against civil posts was considered by the Provincial Government, the following decision were taken- a. A selection Board has been constituted for induction/re- employment of Defence Services personel in this Province. It is felt that the Provincial Government should frame a policy for induction re-employment of all Armed Forces personel in various services such as defunct PCS Provincial Services etc. As well as in the ministers lower cadres in the Secretariat and that of the Government of Balochistan at 10% of vacancies open for initial recruitment, in line with the instructions of the Federal Government b. The Service Rules would be amended accordingly. c. No exemption is to be allowed to any Department. d. Wide publicity is to be given about the 10% reservation. e. Stringent enforcement be made for Grade 1 to 11. Requirement of domicile for employment of ex- servicemen is to stay. g. Libral age relaxation should be allowed to ex-servicemen at the time of employment and necessary provision on this account should also be made in the rules. h. So far as selection of ex-servicemen for Autonomous Bodies is concerned, their masting selection procedure should continue. i. A committee headed by the Chief Secretary is to monitor the progress and the compoision of the Committee is to be determined by the S&GAD. Similar Committees headed by the Deputy Commissioners are also to be set up in the Districts. The real implementation would, however rest with the department* themselves. j. The registration of ex-servicemen for jobs is to be maintained. k. The ex-servicemen are to be given better information about availability of quota as in vacancies etc. L The Committee which prepared the report is to review the implementation of these decisions. m. The age and qualifications standing in the way of employment of ex-servicemen as teachers is to be liberally relaxed. n. As regards employment of ex-servicemen in Police Department, Secretary, Home is to issue instructions to relax the age at entry point for ex-servicemen as Foot Constables. Similarly, the Commissioner, Afghan Refugees in to make efforts for further improvement in his in take of ex- servicemen. o. As regards employment of disabled ex-servicemen h was felt that there is no need to make reservation for them. However efforts should be made to rehabilitate all such persons and all qualifications that stand in their way should be released.
So for as the decision at (a) is concerned, necessary orders/Notifications have been issued vide this Department's letter NO.19-6/80/SO1 (S&GAD) dated 10th February, 198L In respect of
(b) above necessary orders have been issued to all concerned vide this office letter of even number, dated 27th June, 1982. As regards the rest of the decisions, these concern all services/cadres in civil posts under the Provincial Government and Autonomous Bodies and the same may, therefore, please be followed strictly.''
Before proceeding ahead, it is to be observed that the Policies, Instructions issued from time to time by the Government could be equated with statutory Rules, because it possesses generality and covers large number of cases on the subject. In following this principle, we are fortified by the Judgment of Hon'ble Supreme Court in Faizuilah Khan Vs. Government of Pakistan (PUD. 1974 S.C.
291).
Relevant para therefrom with benefit, is reproduced herein-below:- This Court has stated on several occasions that even instructions contained in Memoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so us to be capable of application to a large number of cases - see Pakistan v. Abdul Hamid, (1) Province of West Pakistan v. Din Muhammad (2), Government of West Pakistan v. A Ji. Aziz (3) and Habibur Rehman v. West Pakistan Public Service Commission (4). The Resolution issued by the Central Government on the 8th November, 1950 regarding the creation of the Civil Service of Pakistan amply fulfils these requirements.
29. Surprisingly none, out of learned Counsel appearing to defend the impugned Notification, came out with the argument that in making the induction of respondent No.5 in the Provincial Civil Services, whether the above policy was followed or not However the learned Counsel for petitioner made a statement at bar that no Provincial recruitment Rules, etc. Haw been amended nor the above policy was followed while inducting the respondent Nodi in the Provincial Sendee. Be dud as it may, according to para-(a) of the policy, the Government of Balochistan was authorised to fill up 10% of the vacancies open for initial recruitment in line with the instructions of the, Federal Government Those relevant instructions (policy) has already been discussed herein-above, according to which, the Lt Colonel/equivalent and above, were not held eligible to be inducted in the civil services cm regular basis as such, it is concluded that even in the Provincial civil services such officer cannot be appointed on regular basis in grade-19, a post which is to be filled through promotion under Balochistan Civil Services (EB) Rule, 1984. Therefore without adhering to the relevant instructions/policy, the induction of the private respondent in the Provincial Civil Service (Executive Branch) was corum-non-judice in violation of Policy.
30. Now h brings us to wam the Roles of 15)84. A careful perusal Whereof suggests that initial recruitment of the Executive Branch Officers is to be made m Grade-17. As for as higher posts of Grade-18 and above are concerned, those are to be filled in by promotion. It is also an uncontroverted fact that' Selection ingrade-17 is also to be made by following the Balochistan civil Servants (Appointment, Promotion and Transfer) Rules, 1979, However, relaxation for not adhering to such rules is possible, if a case of hardships having peculiar circumstances, has been brought before the competent authority. Even otherwise the Appointing Authority at the best is competent to grant relaxation of age under the West Pakistan Delegation of Powers (Relaxation of Age) Rules, 15)65. The impugned Notification reveals that the method of recruitment as laid down under Rule-5 of the Balochistan civil Service (Executive Branch) Rules, 1984, has been relaxed under the provisions of Rule-12 of the Service Rules, for the purpose of induction of Colonel Mohammad Hashim (Respondent No.1). We are astonished to note that how on relaxing Rub-5, respondent No.5 could have been inducted in BPS-19 because this rub simply deals concerning recruitment by initial appointment and that too on the recommendation of the Commission based on the result of a competitive examination conducted by k in accordance with January, 1992, therefore, if at all there was an error in the impugned Notification that stands rectified.
30. We failed to associate ourself with the learned counsel on this point as well Firstly for the reason, that according to the policy of Federal Government which is to be followed by the Provincial Government for the induction of Armed Officers in the Civil Services as it has been HternamH above, an officer.
Armed Forces holding a subsistence rank of Colonel can be appointed in the Provincial Civil Services, Executive Branch.
31. Mr. Basharatullah Advocate, attempted to argue that after the issuance of Notification, the respondent No. 5 has relieved from the Army on 06th January, 1992, therefore, if at all there was an error in the impugned Notification that stands rectified.
32. We failed to associate ourself with the learned counsel on this point as well Firstly for the reason, that according to the policy of Federal Government which is to be followed by the Provincial Government for the induction of armed Officers in the Civil services as it has been discussed here in above, an officer of the of the rank of Colonel cannot be appointed on regular basis accept on reemployment/contract. Secondly in the instant petition, we have been persuaded to examine the Notification dated 26th October, 1991, as it stood on the day when^, respondent No.5 was in active service of the Defence of Pakistan, holding the post of Colonel therefore, whatever development/changes had taken place subsequently that would not be relevant for our consideration. Even if the respondent No5 is treated to have been released from the Armed Forces, h would be from the date of release order /retirement and even then the respondent No 5 could either be re-employed or taken cm contract basis in the Provincial Civil Service. But it is not the case of respondent No.5 that from the date of retirement, he has been re-employed or taken on contract
33. In view of the above discussion, we are inclined to hold that under the relevant police\Rules, respondent No.5 had no lawful authority to hold the post of Grade-19 in the Provincial Civil Service (Executive Branch) and the Notification dated 26th October, 1991, had also been issued by the Government of jtolorhistan, without lawful authority and jurisdiction, as such, it is of no legal Farticsare left to bear their own cost.