' SABIHUDDIN AHMED, J.---These petitions are filed by one Gul Muhammad Hajano, an officer of the education department, relating to various matters concerning his conditions of service. Before adverting to the merits of each case and the question of bar of our jurisdiction under Article 212 of the Constitution, it may be appropriate to recapitulate relevant facts which are undisputed.
2. The petitioner was serving as Principal, Comprehensive High ' School (in B-17) when, by a notification dated 22-9-1992 he was promoted to B-18. According to the aforesaid notification, the Chief Minister, in the purported exercise of powers under section 24 of the Sindh Civil Servants Act, accorded him the benefit of pro forma promotion in B-18 with effect from 30-3-1979. As a consequence he became senior to several officers in the aforesaid scale promoted/appointed earlier and, according to him, even those who had been promoted to the next higher scales (B-19) prior to issuance of the aforesaid notification. It may be mentioned that prior to the issuance of the notification dated 22-9-1992, four officers in the Department who had been appointed to B-18 after 30-3-1979, namely, Messrs Habibullah Siddiqui, Nizamuddin Memon, Ali Haider Juj and Anwar Ahmad Zai (Respondents Nos, 6, 7, 4 and 5 in C.P. No, 127/93) had been cleared for promotion to B-19 by the appropriate Selection Board alongwith two others namely Dr. Allandad Bohio and Mr. Ghulam Mustafa Rajput (Respondents Nos,11 and 12) and appropriate notifications then were issued in August, 1991. Those promotions were effected against four vacant posts of Additional Directors (School Education) and two ex-cadre posts and the Board recommended that the junior of these officers may be reverted to their substantive positions (B-18) after abolition of ex-cadre posts. It may also .Be mentioned that earlier (in 1987) same officers in B- 18 had been directly promoted to B-20 as no posts in B-19 existed at that time.
3. Nevertheless it appears that after the abolition of the ex-cadre posts more vacancies in B-19/20 become available and, therefore, the occasion to revert the two juniors of the six promoted officers in 1991, Messrs Ali Haider Juj and Anwar Ahmad Zai never arose. Moreover, owing to shortage of senior officers many of the officers in B-19 were appointed to hold posts in 8-20 on current charge basis without being formally promoted. In the meantime the Provincial Selection Board No, 2, in its meeting dated 29-124994, approved the promotion of the petitioner to B-19 and observed that the question of protection of his seniority be processed after his formal promotion. However, before the issuance of a notification of his formal promotion, an order dated 26-2-1995, transferring the petitioner as Director Secondary Education Mirpurkhas (B-20 post), was issued. Nevertheless, though The petitioner did not assume charge of his new post, a notification dated 10-4-1995 under the signature of the Chief Secretary (the officer competent to transfer B-19 officers) was issued stating that the petitioner was promoted to B-19 with effect from the date, he assumes charge of his new post, i,e, Director Secondary Education, Mirpurkhas. The petitioner still did not join his new posting and another order dated 11-6-1995 was issued by the Secretary Education Department requiring him to assume his new posting but he.Persisted in his defiant attitude and kept on representing asserting that this posting was illegal and he had a right to be appointed against a higher post at Karachi.
4. Against the above factual back grounds it is now pertinent to mention the reliefs claimed in each of these petitions. In C.P. No,127 of 1993 which was filed prior to the petitioner's clearance for promotion to B- 19 he has urged that by virtue of the grant of pro forma promotion to him in B-18 w,e,f, 30-3-1979 he had become senior to M/s Habibullah Siddiqui, Nizamuddin Memon, Ali Haider Juj and Anwar Ahmad Zai in ,B-18. Moreover, certain other officers who were admittedly senior to him did not qualify for promotion to higher scales i,e, B-19/20. He was aggrieved by the fact that all these officers were holding posts in the higher scales and prayed that he be assigned post in B-20 pending his clearance by the Provincial Selection Board, be allowed pro forma promotion w,e,f, 1987 and that Mr. Anwar Ahmad Zai be reverted to B-18 after expiry of the ex-cadre post that he was holding.
5. In C.P. No, 1489 of 1995 filed after notification for his promotion to B-19, the petitioner has claimed that he was the senior most B-19 officer and entitled to be promoted to B-20 and posted as Director Secondary Education, Karachi, whereas he is made to work under an officer junior to him i,e, Mr Anwar Ahmad Zai. He has prayed that the respondents (Government of Sindh and Secretary Education Department) be directed to submit his case before the Provincial Selection Board for consideration for promotion to B-20 with effect from 30-3-1989 and that only six officers in B-19, be recommended against 3 posts of Directors, Secondary and Primary Education (B-20). In the parawise comments, it has been inter alia, stated that the petitioner was promoted to B-19 vide Notification dated 10-4-1995 and appointed to take charge of the post of Director Secondary Education, Mirpurkhas (B-20 post) in his own pay and scale with effect from the date of assumption of the charge. Since he had not assumed the aforesaid charge on his promotion he was still a B-I8 officer.
6. In C.P. No, 1492 of 1995, the petitioner had challenged the order of his transfer from the post of District Education Officer (East) Malir to that of Director Schools Education, Mirpurkhas and the appointment of another officer as his successor on the ground that the Chief Minister had imposed ban on transfer and posting of officers of BPS-16 and others and the Secretary Education Department had no lawful authority to effect the transfer. He has contended that he has a right to be posted as Additional Director Schools Education, Karachi in BPS-20. In the parawise comments it has been submitted that the transfer has been effected by the Services and General.
Administration Department with the approval of the competent Authority and not by Secretary Education.
7. In C.P. No, 1558 of 1995 the petitioner has alleged that posting of officers of lower cadres B-18 and 19 against posts in higher cadres B-19 and 20 is per-se illegal and prayed that the officer so posted (Respondents Nos,7 to 16) be reverted. Nevertheless it was further prayed that he be posted as Director Schools Education, Karachi on current charge basis. It has also been prayed that the said respondents be restrained from exercising powers of incumbents of such posts.
8. In C.P. No, 1803 of 1995, the petitioner has challenged the appointment of Mr. Anwar Ahmad Zai (respondent No, 7), as Director Secondary Education, Karachi (in his own pay and scale in B-19) on the ground that the aforesaid respondent was neither qualified to be appointed as District Education -Officer (B-18) nor was regularly promoted as Additional Director (B-19), In C.P. No 1804 of 1995, he has alleged that certain order passed by the aforesaid Mr. Anwar Ahmad Zai, in the aforesaid position, including one withdrawing the powers of Drawing. And Disbursement Officer from the petitioner be declared invalid on account of invalidity of such appointment.
9. Having gone through all the memoranda of the rather disjointed petitions and the relevant documents, it appears that the petitioner has unnecessarily complicated issues by indulging in multiple litigation and his own stubborn attitude. From the list furnished by the respondent alongwith their counter-affidavit in C.P. No,1492 of 1995, it appears that the petitioner filed about 38 Constitutional petitions in this Court and seven petitions for leave to appeal before the Honourable Supreme Court, apart from making many representation to authorities from time to time between 1989 and 1995. It also appears that the correct legal position has been largely misconceived by the petitioner, but also partly by concerned officials of the Department. Nevertheless, notwithstanding the overlapping reliefs claimed and the unsubstantiated allegations of mala fides the basic grievances of the petitioner may be summarised as under:--
(i) That after grant of promotion to B-18 with effect from 30-3-1979, the petitioner was to be considered senior to M/s Habibullah Siddiqui, Nizamuddin Memon, Ali Haider Juj and Anwar Ahmad Zai for the purpose of further promotion to B-19 and B-20.
(ii) Accordingly he should have been treated as promoted to B-19 with effect from 28-8-1991, when Mr. Habibullah was promoted and considered for promotion to B-20 on that basis.
(iii) His promotion to B-20 should have been given effect from 30-3-1989 when Mr. Abdul Moid Farooqui was so promoted inasmuch as though. Mr. Farooqui was senior to the petitioner, he did not qualify for promotion on merits.
(iv) That in any event M/s Ali Haider Juj and Anwar Ahmad Zai were '.Promoted to B-19 on 28-8-1991 against ex-cader post and such promotion could not be treated as regular promotion.
(v) In any case, Mr. Anwar Ahmad Zai's initial appointment as District Education Officer (B-18) was itself illegal and he was, therefore, not eligible for any further promotion.
(vi) That the orders of petitioner's transfer to Mirpurkhas were illegal and he had a right to be posted at Karachi against post in B-19/20.
(vii) That appointment of officers of lower scale against higher post in B-I9/20 was per se, illegal and after reverting them to their substantive posts senior persons promoted on regular basis should be appointed against that post.
10. Assuming that the benefit of seniority in B-18 was lawfully granted to the petitioner with effect from 30-3-1979 vide notification dated 22-9-1992 (though this appears to have been questioned by Mr. Anwar Ahmad Zai vide Appeal No 96 of 1993 before the Sindh Service Tribunal) the petitioner would indeed be entitled to be treated as senior to all officers appointed to B-18 after 30-3-1979. As such he would be entitled to be considered for promotion to B-19 in preference to all such officers serving in B-18. However, if some persons had already been promoted to B-19 before petitioner's correct seniority position in B-18 was determined, or through some mistake as to his seniority, the petitioner could, not as of right, claim pro forma promotion to B-19 from the date these officers were promoted under the Sindh Civil Servants Act and rules made thereunder. Indeed he could, in a proper case be given financial benefits if justice and equity so required under section 24 of the Act. Nevertheless his right to be considered for promotion was a legal right and if he were denied such right at one stage of his career for no fault of his, the law provides adequate redress to ensure that he is not prejudiced thereby in future, Accordingly Rule 13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules 1975, provides:-- "13. A civil servant, who is not promoted on his turn on the ground that---
(i) his seniority is under dispute or is not determined.
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered by the selection authority inadvertently; shall; subject to any order made by the competent Authority in this behalf; on promotion, be deemed to have been promoted in the same batch with his juniors promoted earlier."
11. It may be recalled that under section 8 of the Sindh Civil Servants Act, the seniority of a civil servant is reckoned from the date of his regular appointment to a post in a grade. The above rule provides that if he is not considered for promotion on his turn for no fault of his, he will not be prejudiced by earlier promotion of his juniors and, into higher grade, he would be treated senior to his immediate junior in the lower grade. This rule is designed to prevent a chaos that may arise through decisions reconsidering A seniority of civil servants and to ensure that instead of claiming mechanical promotion on account of some mistake of the department, a civil servant must first establish his fitness for promotion and then, after being promoted, claim benefit of seniority denied through the mistake. Therefore, if the petitioner's case is covered by any of the clauses enumerated in Rule 13 he would certainly be entitled to be treated senior to Mr. Habibullah Siddiqui and his juniors in B-19 and eligible to be considered for promotion to B-20. In case he-allowed a controversy to arise in this respect by refusing to assume the charge of his new posting and furnished an occasion to contend that his promotion to B-19 had not yet taken legal effect, he can only blame himself. Perhaps the situation may be remediable if he is furnished another opportunity and he agrees to avail of the same. It may also be possible for him to urge that his promotion had taken legal effect so as to qualify him for the benefit of Rule 13. Nevertheless the question is one of proper determination of seniority and the jurisdiction of this Court is clearly barred under Article 212 of the Constitution.
12. It may also be clarified that the above questions do not relate to fitness of promotion of the petitioner regarding which the Service Tribunal has no jurisdiction in terms of section 4 of the Sindh Services Tribunal Act. They concern his seniority and on that basis his eligibility to be considered for promotion to the next higher scale. The distinction between eligibility and fitness in the context of service laws has been succinctly drawn by the Honourable Supreme Court inter alia in Ion Ahmad Khurram v. Government of 'Pakistan (PLD 1980 SC 153); Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCM R 1129) and Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539). In Abdul Malik's case it was observed:-- "The qeustion of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution of or an opinion of the competent Authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent Authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification."
' Consequently the directions prayed for in C.P Nos, 127 of 1993 and 1489 of 1995 cannot be granted by this Court.
13. As regards the petitioner's grievance against his posting to Mirpurkhas and directions sought for posting at Karachi it may be observed that a Civil Servant is required to serve anywhere in Pakistan under section 10 of the Sindh Civil Servants Act. More particularly he cannot claim a right to be posted at the station of his own choice as a consequence of his promotion to a higher rank.
Perhaps an order of transfer may be questionable on grounds of mala fide or coram non-judice but again only a service tribunal is the competent forum to adjudicate such a question. It may be interesting to mention, (as is evident from documents annexed to the counter-affidavit of the respondent/Government in C.P. No, 1492/91) the petitioner had filed petitions challenging two earlier orders of his transfer. Both the petitions were dismissed by tow different benches of this Court on the ground of being barred by Article 212 of the Constitution. He approached the Honourable Supreme Court against both judgments and leave was refused vide orders dated 28- 8-1989 and 10-9-1991, copies whereof have been placed on record. Yet despite full knowledge that such petitions are not maintainable, the petitioner has approached this Court without disclosing the fact of earlier petitions seeking relief of identical nature, C.P. No 1492 of 1995 is thus liable to be dismissed.
14. Coming to the question of invalidity in the appointment of Mr. Anwar Ahmad Zai (respondent No,7 in C.P. No, 1803/95) giving the maximum benefit of doubt to the petitioner, we are inclined to assume that a petition, questioning the holding of a public office by an unqualified person may be maintainable by way of one for quo warrantor in terms of Article 199(i)(b)(ii) of the Constitution at the instance of any person (as distinguished from an aggrieved party). The two grounds mentioned in the petition are that respondents initial appointment as District Education Officer effected in 1985 was illegal and his promotion as Additional Director vide order dated 28-8-1991, having been made against an ex-cadre post could not be treated as regular or legal.
15. As regards the first ground though it is contended that the respondents did not possess the requisite qualification for appointment as District Education Officer, there is nothing available on record to show how he was deficient in terms of the prescribed qualification. Unfortunately no comments have been filed by the aforesaid respondent and those filed by the department are not helpful. Nevertheless copy of the notification dated 2-7-1985 filed by the petitioner himself shows that the appointment of the respondent No,7 as District Education Officer was made on the recommendation of the Public Service Commissioner and at least creates a presumption of regularity in the appointment. Moveover, it is well-settled as held by the Honourable Supreme Court in Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203) that when the petition is filed by private person, (and not a law officer of the State) there is a heavy burden on the petitioner to show that the respondent lacks qualifications for the office. Therefore, the challenge based on this ground cannot be accepted.
16. Secondly it has been urged that though six officers were recommended for promotion to B-19 by the Provincial Selection Board on 4-6-1991, observed that they were made against four vacant and two ex-cadre posts and that the two junior promotees were liable to be reverted upon abolition of the ex-cadre posts. The petitioner has contended that though actual reversion did not take place, but in law promotion against an ex-cadre post did not amount to regular promotion and, therefore, Messrs Ali Haider Juj and Anwar Ahmad Zai continued to remain B-18 Officers. He has placed reliance on the judgment of the Honourable Supreme Court in Islamic Republic of Pakistan v. Israrul Hassan (PLD 1981 SC 531) and pointed out that for this reason the department itself, in certain letters, took the view that the cases of those officers had to be placed before the Selection Board once again for regular promotion to B-19.
17. We regret we are unable to agree. The judgment of the Honourable Supreme Court does not help the petitioner and is completely distinguishable. In that case the respondent who was a Police Officer was not recommended by the Selection Board for promotion as D.I.-G. But was appointed against a post of Deputy Secretary to the Federal Government in the same grade but outside his cadre. The Honourable Supreme Court observed that the decision of the Selection Board had to be given sanctity and such ex-cadre appointment could not be treated as regular promotion in the rank of D.I.-G. Police. In the instant case the concerned Selection Board itself after proper scrutiny of record recommended these officers for promotion. Thereafter, it was for the Government to promote them whenever vacancies were available and the promotions having been made on the recommendation of the Board in accordance with rules, had to be treated as regular. Though the occasion to revert them did not arise, we may add that even if they had been actually reverted for want of posts, they could still be promoted on regular basis without further reference to the Selection Board. In this context we are fortified by the observations of the Honourable Supreme Court in Aslam Waraich v. Secretary Plainning and Development Division (199.1 SCMR 2330). In the above case it was observed that persons promoted on acting charge basis after clearance from D.P.C./Selection Board merely for want of fulfillment of the required length of service in a lower rank were eligible for regular promotion upon completion of such period. Therefore, in our humble view C.P. No, 1803 of 1995 is liable to be dismissed. Moreover, even if the appointment of Mr. Anwar Ahmad Zai is. Found to be illegal, the orders passed are protected under the doctrine of de facto C.P. No, 1804 of 1995 must, therefore, also be dismissed.
18: We are now left with C.P No, 1558 of 1995 wherein a general direction praying that all officers of lower Grade-B-18/19 working against higher posts in B-20 be reverted to their substantive position and the petitioner be considered for promotion to B-20 and posting as Director School Education, Karachi. Obviously a direction to promote the petitioner and assign him a particular posting of his choice cannot be issued. Moreover, his grievance was substantially redressed when he was directed to assume charge of a B-20 post at Mirpurkhas which the petitioner himself refused to obey. Nevertheless we can certainly not approve the inaction on the part of the concerned authorities in failing to convene Selection Boards to approve fit and competent persons for promotion to vacant posts in B-19 and 20 and allowing those in lower scales to work against such posts on current charge basis in their own pay and scale. No doubt at times persons duly approved for promotion may not be available to fill vacant posts in a higher scale and the power to appoint a person in a lower scale by way of a stop-gap arrangement, to prevent performance of public duties to a stand-still, is available with the Government. At times persons possessing requisite experience to qualify for regular promotion may not be available in a department.
However, all such exigencies are taken care of and regulated by statutory rules. Rule 8-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, inserted through notification dated 10-8-1982 relates to appointments of civil servants on acting charge and current charge basis. It provides that when a post is required to be filled through promotion and the most senior civil servant eligible for promotion does not possess the specified length of service, appointments of eligible persons may be made on acting charge basis after obtaining approval of the appropriate departmental promotion committee/Selection Board. Sub-rule (4) of the aforesaid rule provides that appointments on acting charge basis shall be made for vacancies lasting for more than six months and for vacancies likely to last for less than six months appointments on current charge basis may be made. An appointment of an officer in a lower scale to a higher post on current basis in his own pay and scale without being formally promoted, therefore, by its very nature is only provided for as a stop-gap arrangement and should not under any circumstances last for more than six months. It may be mentioned that though the six months duration does not seem to be prescribed in the rules relating to Federal Government employees, the Honourable Supreme Court, in the recent case of Pakisnt Railways v. Zafarullah (1997 SCM R 1730) strongly disapproved of indefinite continuance of current charge appointments and Saiduzzaman Siddiqui, J. (as the Hon'ble Chief Justice then was) delivering the majority opinion observed:-- "Before parting with the cases, we would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the Rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time. a copy of this judgment be sent to Establishment Division for future guidance."
19. We would like to add that the matter is not one of mere technical non-compliance with statutory rules. Our Constitutional and legal system attaches foremost importance to transparency and fairness in the administration of matters relating to appointment and carreer building of civil servants who are required to perform sensitive public duties strictly in accordance with law. There is no room for spoils system in our jurisprudence as repeatedly asserted by the superior Courts.
Strict adherence to rules can be enforced as fundamental rights guaranteed under Article 18 of the Constitution as held in Re: Abdul Jabbar Memon (1996 SCM R 1349). Executive discretion in matters relating to service conditions is strictly controlled by law and statutory rules and every order, passed by a departmental authority relating to terms and conditions of a civil servant is appealable to a high level independent judicial tribunal and therefrom to. The Supreme Court on a point of law. Against this ethos when competent and senior officers are ignored for promotion and the authorities, after by-passing duly constituted promotion Committees Selection Board arrogate to themselves, through the device of making current charges appointments the power of appointment junior offices to enjoy the supervisory authority and perquisites of higher posts for indefinite duration and element of arbitrariness is introduced which is not warranted by law. Such appointments if continued beyond a reasonable time, if not justiciable before Service Tribunals may attract the jurisdiction of this Court under Article 199 of the Constitution, including writ of quo waarranto directing the incumbent to lay down his office. Indeed the device of continuing with such appointments was acknowledged to be undesirable in several letters from higher authorities but apparently the matter was not taken seriously. It may also be recalled that when the Honourable Supreme Court, disapproved appointments of acting and ad hoc Judges to the Supreme Court against a permanent posts in Al Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), how can current-charge appointments in Civil services against permanent posts be approved when the rules themselves require such appointments to be made against vacancies lasting for less than six months.
20. In the instant case, however, the petitioner has not been able to show that a sufficient number of senior and competent officers were ignored for promotion by adopting the device of current- charge appointments. The seniority lists placed on record indicate that most of the officers assigned higher positions were the senior most in the lower scales. As regards the petitioner himself it is evident from the record that he was thrice called upon to assume charge of a B-20 post but he declined to do so. In the circumstances we would not be inclined to issue a writ of quo warranto directing the incumbents to lay down their respective offices, but would confine ourselves to issuing a directive to the Provincial Government to convene the appropriate Selection Boards within four months from today and post duly recommended and promoted officers against permanent post in B-19 and 20.
' The upshot of this discussion is that C.P. No,1558 of 1995 is allowed to the above extent and the remaining petitions are dismissed. A copy of this judgment may be forwarded to the Chief Secretary and Secretary Education Department, Government of Sindh.