1. ' ' S.NASIM HAIDER (SENIOR MEMBER).---Being aggrieved with the impugned Notification No,3(54)SO(A.III)/78, dated 20-2-1997, issued by the Agriculture and Wildlife Department, Government of Sindh, cancelling its earlier notification of even number dated 27-9-1994 and A thereby annulling the appellant's absorption as Agriculture Engineer (BPS18)/his consequent reversion to a post in BPS-17 in Local Government and Rural Development Department he filed departmental appeal/review petition dated 14-3-1997. Having received no decision thereof and after awaiting the statutory period, he has filed this service appeal.
2. ' The facts of the appeal, according to the appellant, are that he was originally appointed as Assistant Engineer (BPS-17) in Housing Town Planning, Local Government and Rural Development Department on 17-1-1981, on ad hoc basis. His services, as such were regularised w,e,f, 22-5-1989, vide Notification dated 12-6-1990. His services were subsequently placed at the disposal of District 'Connell, Karachi where he was posted as District Engineer BPS-18, in his own pay and grade. He was allegedly absorbed, on account of his meritorious performance, as Agriculture Engineer (BPS- 18) in the Agriculture and Wildlife Department under the orders of the 'Competent Authority' in relaxation of rules vide Notification dated 27-9-1994. However, he was allowed to continue in H.T.P.L.G. Department on the post of District Engineer (BPS-18), District Council, Karachi, on deputation. Terms and conditions of such deputation, were notified accordingly on 12-6-1995. His name was also included in the Provincial Seniority List of Agriculture Engineers/Deputy Directors BPS-18, in Agriculture Engineering Wing, as stood on 31st October, 1994 vide circular dated 13-11- 1994. Vide notification, dated 22-12-1996, the appellant was repatriated by the Local Government, Public Health Engineering, Rural Development and Katchi Abadies and as such he reported for duty in Agriculture and Wildlife Department on 24th December, 1996. However, the appellant's appointment as Agriculture Engineer BPS-18 was Cancelled vide Notification, dated 20th February, 1997 by the Agriculture and Wildlife Department allegedly without any show-cause notice or inquiry and without affording him a proper opportunity to defend himself; resulting in his departmental appeal and present service appeal More Sindh Service Tribunal.
3. ' The counsel for the appellant's main thrust was that the grant of BPS-18 to the appellant by the then Chief Minister Sindh, was 'legal'--he being the Government and empowered under section 24 of the Sindh Civil Servants Act, 1973 to pass any order, in relaxation of rules. Thereafter, he categorically asserted that it could not be withdrawn/or cancelled without issuance of a show- cause notice or a proper departmental inquiry. He specially invited our "attention to PLD 1990 SC page 279 (Sohrab Khan Kalwar's case) relevant pages 282/283) wherein the Hon'ble Supreme Court, set aside the impugned order, wherein only the personal hearing was not afforded to him as well as 1994 SCMR page 2230 (case of Anisa Rehman) relevant page 2240. He emphatically contended that 'whatever be the nature of appellant's appointment or absorption in BPS-18 as Agriculture Engineer, legal or illegal the case of Himayatullah Farukhi as reported in PLD 1969 SC page 407 was fully applicable to appellant's case-as reaffirmed in PLD 1971 SC p.
846. He also contended with full force that even in the famous case of Ahsanullah Memon, the Hon'ble Supreme Court had not held the exercise of powers by the Chief Minister under section 24 of the Sindh Civil Servants Act, 1973 as 'illegal' and de facto such powers have been exercised by all the C.Ms. Till today. He also argued that it has become an order of the day that every new regime throws out the appointees of previous regime, allegedly on the grounds of illegal and irregular appointments, without observance of the prescribed procedure, causing several casualties against the principles of natural justice and this practice which must be stopped once for all.
4. ' Assistant Advocate-General, Sindh, also argued at length. He stated that it is an undisputed fact that the appellant was initially appointed in Housing Town Planning Local Government Department in BPS-17. From there, the appellant was posted as District Engineer (BPS-18) in his own pay and scale, which speaks for itself. As regards his alleged appointment 'absorbed' as Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department he said that Rule 9(A) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provides as under:-- "9(A). Notwithstanding anything contained in these rules, a person who has been rendered surplus on Account of abolition of a post, he was holding in, any office or department of Government or any autonomous body on account of permanently taking over the administrative of such autonomous body, wholly or partially, by the Government may be appointed to any post in any department or office of the Government subject to the conditions (i) to (iv)."
5. ' He, therefore, argued that the appellant was not entitled for absorption in any other department as he was not declared surplus. He argued that as provided under Rule 10 of the Sindh Rules, initial appointment to a post in BPS-18 is to be made on the recommendations of the Sindh Public Service Commission and it is an undisputed fact that the appellant was not appointed on the recommendations of Sindh Public Service Commission. The Chief Minister Sindh, of course, in exercise of his powers under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1974 could take out that post from the purview of Sindh Public Service Commission and order it to be filled up in such manner as he may determine--but the post to which appellant was allegedly appointed by so-called 'absorption' was never taken out from the purview of the Sindh Public Service Commission by the then Chief Minister, nor was he selected through any Selection Committee, consequently appointed for that purpose.. Hence, he was of the firm opinion that the very appointment of the appellant to BPS-18 post of Agriculture Engineer was 'illegal'.
6. ' He pointed out that 'Competent Authority' in Notification dated 27-9-1994 is not described. He said that it is not mentioned specifically that the appellant's appointment to the post of Agriculture Engineer (BPS-18) was made by the then Chief Minister in exercise of his powers under section 24 of the Sindh Civil Servants Act, 1973. In the absence of exact words to that effect, it was, according to him a 'void order' as held in PLD 1982 (sic) p.184. He argued that as per para. 6 of the written statement of the respondents (page 2) the post of Agriculture Engineer (BPS-18) being exclusively a 'promotion post' no direct appointment against that post could be made legally. He denied that the appellant was not afforded a personal hearing as accepted in para. 8 of the appeal itself--'the Secretary called the appellant in his presence in first week of February, 1997'.
7. ' He was of the firm opinion that the 'absorption' of a civil servant in another department is possible, only if he is rendered 'surplus'--or the original department is abolished which is not the case of the appellant.
8. ' He lastly stated that the appellant did not perform his duties in Agriculture Department even for a single day. His parent department in fact was Housing Town Planning, Local Government Department. He, therefore, concluded that the appeal may be dismissed.
9. ' The counsel for the appellant exercising his right to reply, referred to the various summaries to Chief Minister--pointed out to page 171 (Annexure to written statement) showing categorically that the appellant was appointed by absorption, under the orders of the then Chief Minister. He also pointed out to page 173 (Annexure of written statement) wherein it was clearly written 'Former Secretary Agriculture' without getting approval from the Chief Minister, issued cancellation order of absorption'.
10. ' It was observed by the Chairman that it was also recorded at the same page by the then Chief Secretary:-- "Since the post of Agriculture Engineer is a promotion post in BPS-18, the recruitment rules do not permit such absorption. The order of ex-Secretary Agriculture may kindly be upheld.
11. (Sd.) Chief Secretary."
12. ' In view of the observations of the Chief Secretary, Sindh, the Chief Minister Sindh, regretted the request of the appellant on 9-8-1997, which prima facie shows ex post facto approval of the then Chief Minister Sindh (of the said orders of Secretary Agriculture and Wildlife Department), in our opinion.
13. ' We have gone through the arguments of either side, carefully, examined the record and perused the citations.
14. ' In our opinion, the crux of the appeal is whether the appointment order of the appellant, dated 27- 9-1994, issued by the Secretary to Government of Sindh, Agriculture and Wildlife Department, whereunder he was 'absorbed' as Agriculture Engineer (BPS-18) in that Department is legally valid or otherwise? Rule 10. Of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 reads as under:--
10. Initial appointments to posts in Grades-16 to 22 shall be made if the posts--
(a) fall within the purview of the Commission on the basis of examination or Test to be conducted by the Commission;
(b) do not fall within the purview of the Commission, in the manner, as may be determined by the Government."
15. ' We are in agreement with the A.A.-G. That it is not the case of the appellant that he was appointed to the said post of Agriculture Engineer (BPS-18), either on the recommendations of Sindh Public Service Commission under Rule 10(a) or by taking out the said post, out of the purview of the Commission, by the then Chief Minister, Sindh in exercise of his powers as provided under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1974--therefore, not covered under Rule 10 quoted above. Thus, it is not "Initial Appointment" in accordance with the above-quoted prescribed rule, on the subject.
16. ' The only other two methods for appointment, in the said appointment rules of 1974 are: "By Promotion or Transfer" ' as contained in Part II--Appointments by Promotion or Transfer.
17. ' In this context, we find that it is not the case of appellant" that he was appointed to the post of Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department by promotion--because he was not appointed as Agriculture Engineer (BPS-17) in that Department but in another Department viz. H.T.P.L.G. And Rural Development Department. Hence, the appellant could be appointed as Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department, only by 'Transfer'. Rule 7 of the said appointment rules reads as under:-- "7.--(1) Appointment by promotion or transfer to posts in Grades-1 and 2 shall be made by the appointing authority on merit.
(2) Appointments by promotion or transfer to post in Grade-3 to Grade-18 without special pay other than the posts or which Provincial Selection Board has been constituted under Rule 6-A, shall be made on the recommendations of the appropriate Departmental Promotion Committee.
(3) Appointment by promotion and transfer to posts in Grade-18 with special pay and above and the posts notified under Rule 6-A, shall be made on recommendations of the appropriate Provincial Selection Board."
18. ' The use of the word "shall" in this rule, as per established principles of interpretation of statutes has a 'mandatory' effect. Any appointment to a Grade-18 post (if an appointment by Promotion or Transfer) made without the recommendations of the prescribed Provincial Selection Board or duly appointed/notified Departmental Promotion Committee in the concerned Department is not in accordance with the prescribed law, to say the least.
19. ' There was nothing in the original Civil Servants Act, 1973, or appointment rules framed thereunder in 1974, which provided for an appointment by 'absorption' from the employees of an outside department till introduction of Rule 9(a) vide Notification No,SOIX REG(S&GAD)2/D/1- 74-Pt.II(Vol III), dated 1-2-1978 and that relates to a person who has been rendered surplus on account of abolition of a post he was holding in any office or department of the Government or any autonomous body or on account of permanently taking over the administration of such autonomous body wholly or partially by the Government provided that--
(i) such person possesses .Such qualifications as are laid down under Rule 3(2) for appointment to such post;
(ii) such person shall be appointed to a post of equivalent or comparable grade and if such post is not available then to a post of lower grade;
(iii) seniority of such person in the new cadre shall be reckoned from the date of appointment in that cadre; and
(iv) previous service, if not pensionable shall not count for pension an gratuity unless Government directs otherwise."
20. ' What is crystal clear from the newly introduced Rule 9(A) above is that it is applicable to only 'surplus' persons rendered so, on account of abolition of their post or department. Since the original, substantive post of Agriculture Engineer (BPS-17) in Rural Development of Housing Town Planning, Local Government against which the appellant was appointed on ad hoc basis in 1981 and later regularised in 1990 which has not been abolished nor it is so contended before us is so- called 'Absorption' against the post of Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department was not in accordance with the abovesaid law--notwithstanding the fact that he was placed at the bottom of the seniority list of that cadre in 1994, as pointed out by the counsel for the appellant.
21. ' On top of these valid legal objections of the A.A.-G., the respondents alongwith their w.s. Have annexed, copies of 3(three) summaries to the Chief Minister which are chronologically as follows:--
(i) Summary dated 12-7-1994, diary No,3419. The subject of this summary is "Request for permanent absorption as Assistant Engineer (BPS-17) and appointment by way of transfer to Engineer (BPS-18) in Sindh Local Government Board which was opposed by the then Secretary. The Minister being' out of country, it was submitted to the then Chief Secretary who recorded: "The summary (F/A) containing the full facts of the case, in the light of relevant rules of service, was discussed by the Chief Secretary and Secretary Local Government with the Chief Minister who ordered that Mr. Agha may continue on deputation (para. 10 of F/A) as the request for absorption is not tenable.
22. (Sd.) C.S., dated 9-7-1994."
23. ' The orders of the then Chief Minister are available at para. 7 and read: "Since Agha Altaf Nabi is M.Sc. In Agriculture Engineering, he is absorbed in BPS-18, Agriculture Engineering Wing, Agriculture Department, with immediate effect. He is allowed to work as District Engineer, District Council, Karachi on deputation.
24. (Sd.) C.M., dated 10-7-1994."
25. ' It is obvious from the plain reading of this Summary, that appointment by absorption, was not tenable under law, opposed by the Administrative Secretary (HTPLG & Rural Department)
26. Department as well as by the Chief Secretary to Government of Sindh, who incidentally is also the appointing authority of BPS-18 yet, the then Chief Minister passed an order without even consulting the then Secretary, Agriculture and Wildlife Department where the appellant was actually absorbed. Naturally, it created, yet another legal anomaly i,e, the post against which the appellant was 'absorbed' viz. Agriculture Engineer (BPS-18) was purely a 'promotion post' i,e, only Agriculture Engineer in BPS-17 in. Agriculture and Wildlife Department could be promoted against that-- appointment either initial or direct or by transfer, being not legally permissible. Their Lordships of the Supreme Court of Pakistan expressed their displeasure in the case of Nasimul Haq Malik v.
27. Government of Sindh as decided on 7-5-1996, on any recruitment by (the C.M.) in violation of the prescribed quota between direct recruitees and promotees and held that any appointment of a promotee against a direct recruitment post, not being in accordance with law would take effect from the actual date of the occurrence of a permanent vacancy under the prescribed quota. On the same analogy, we are of the view that a direct/initial appointment against a purely promotion post would also be 'not valid' in the eye of law based on the above-quoted judgment of the Hon'ble Supreme Court of Pakistan.
2. Summary to Chief Minister bearing No,3950, dated 21-9-1994. In para. 2 of this summary with reference. To the orders of the then Chief Minister dated 10-7-1994 quoted above, the Secretary Agriculture and Wildlife Department unequivocally records as follows:-- ' In this context, it is submitted that according to the recruitment rules for the post of Deputy Director/Agriculture Engineer BPS-18, the post is to be filled by promotion from amongst the holder of the post of Assistant Agriculture Engineer, having five years' service in BPS-17, in the department or by transfer from amongst the offices in On Farm Water Management Project or any other Engineering Wing of the Agriculture Department. There is no provision of outsiders for absorption in Agriculture Engineering Wing."
28. ' In para. 3 it is further recorded: "In view of the above position, it will be necessary to amend/relax the recruitment rules so as to enable this Department to implement the orders of the Chief Minister."
29. ' The orders of Chief Minister are contained in para. 7 as follows:-- "As proposed in para. 3."
30. (Sd.) C.M., dated 21-9-1994.
31. ' In this context, we observe that the actual words used in para. 3 above are: 'it is necessary to amend/relax the recruitment rules'. Neither the recruitment rules were amended (for which there is a prescribed procedure of approval, by a notified Committee comprising of the representatives of the A.D. (Administrative Department), S&GAD and a nominee of the SPSC (Sindh 'Public Service Commission) followed by the issuance of a formal notification, nor an specific order of the Chief Minister, in exercise of the powers vested in him alone under section 24 of the Sindh Civil Servants Act, 1973 for relaxation of the recruitment rules to the post of BPS-18/Agriculture Engineer was issued, whatever be its validity in the eye .Of law. What actually followed was the notification, dated 27th September, 1994 which is reproduced below:-- "In pursuance of the approval of the Competent Authority, Agha Altaf Nabi BPS-17 office of Rural Development Department is absorbed as Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department with immediate effect.
2. Mr. Agha would, however, continue to work in the Local Government and Rural Development Department on deputation, till further order."
32. ' Secretary to Government of Sindh, ' Agriculture and Wildlife Department."
33. ' What is significant is the use of the words "In pursuance of the approval of the Competent Authority". We may point out here again that the competent Authority in respect of BPS-18 officers vide Notification No,SOIXREG(S&GAD)II/48-84, dated 11-2-1985 is the Chief Secretary and as per record of Summaries produced before us, the Competent Authority viz. The then Chief Secretary never approved--rather opposed, such absorption--being not tenable under law, prior to the issuance of that notification (or subsequently when his successor-in-office opposed it on different grounds of being an exclusively promotion post).
34. ' The big question before us is that even despite such opposition by the Competent Authority the then Chief Minister, in his wiser wisdom, passes an order not provided under law and what is the 'legal validity' of such orders?
35. ' It has been repeatedly argued before us, that the Chief Minister being the Chief Executive under the Rules of Business, Leader of the House, law framing machinery is fully empowered to grant exemption from operation of any law, laid down enactments, rules and regulations even without proper justification. We, do not subscribe to this line of argument. Firstly, Pakistan being an Islamic State. Only 'Allah' the Magnificent and Merciful is 'omnipotent' .-Despite his inherent prerogative, his general policy in the words of Qur'an is: {{ARABIC TEXT}} ' Allah does not change His law. There may be deviation from certain practices like Jesus born without a father--but in Shariat it is called 'Miracle'-in the words of Allah explained{{ARABIC TEXT}} ' It is also an accepted principle of Islamic Shariat that no human being, even the Caliph the Head of an Islamic State, is above the prescribed law and this principle was repeatedly manifested and upheld by our 'Khilafae-Rashideen'--concept of an omnipotent human being beyond Islam. Even if a Caliph is not exempted from operation of a prescribed law how can he grant it to some one else.
36. Such exemptions if granted vitiate the legal maxim 'Law is blind' i,e, it does not differentiate from person to person.
37. ' As regards the power of the Chief Minister under section 24 of the Sindh Civil Servants Act, 1973, suffice it to say that their Lordships of the Supreme Court of Pakistan in the famous case of Ahsanullah Memon v. Government of Sindh 1993, SCMR 982 in Civil Appeal No,247-K of 1991 have held that such powers are abridged by the use of the words 'just' and 'equitable'. The appointment of the appellant as Agriculture Engineer (BPS-18) in Agriculture and Wildlife Department in our considered view was neither 'just' i,e, in accordance with the law nor 'equitable' being unfair to the Agriculture Engineers (BPS-17) in that Department whose legal chances of promotion to that post were 'blocked' by such unwarranted 'absorption'-- specially because the appellant had not worked as such for a single day while required/prescribed experience was of '5' years in that Department not HTPLG R.D. Knowing these legal obstacles and hurdles, the then Chief Minister Sindh, in our opinion, deliberately avoided the use of the usual words "in exercise of the powers vested in him under section 24 of the Sindh Civil Servants Act, 1973", for which there was no justification at all and which was opposed tooth and nail by the then Secretary (HTPLG)/Secretary, Agriculture and Wildlife as well as the prescribed competent Authority viz. The then Chief Secretary and his successor in office. Such orders were passed by him because of obvious extraneous considerations to say the least--neither justified nor warranted nor falling within the definition of 'hardship' a prerequisite for the exercise of such powers.
38. ' As regards the pleadings/application of the doctrine of locus poenitentiae, in our humble opinion the keywords are 'if a legal right has been created and enjoyed' both prerequisites are must for such application. What is a 'legal right'? In our humble opinion, it is a right given under a 'law' and its definition by any stretch of imagination would not extend to any right acquired or given illegally including through coersion--mental; physical, political all included.
39. ' In view of what has been stated above, we are of the firm view that no cogent grounds are shown to us to interfere with the impugned order dated 20-2-1997 cancelling the appellant's illegal absorption as Agriculture Engineer (BPS-18) which was neither in accordance with the law on 'absorption' as contained in Rule 9(A) nor appointment by way of Transfer being contrary of Rule 7(1) and (2). Moreso, because of the specific provisions in Rule 9(1) which reads as follows:-- "9. (1) Appointment by transfer shall be made from amongst the persons holding appointments on regular basis in the same grade, in which post to be filled exists."
40. ' It is an undisputed fact that the appellant at the time of his so-called absorption was working as District Engineer (BPS-18) District Council, Karachi, in his own pay and grade viz. BPS-17. However, appeal is dismissed.
41. ' There are no orders as to the Costs.
42. ' Announced in open Court this 12th day of January, 1989 at Karachi.