' MUHAMMAD MOOSA K. LEGHARI, J=--The petitioner through this petition has called in question the Notification dated 20-8-1999 (Annexure H) issued by Respondents Nos.1 and 2 and challenged the appointment of respondent No,3 as Director-General Agriculture Extension Sindh with the prayer to declare the said Notification to be without jurisdiction and of no legal effect, as the posting of respondent No,3 by way of replacing the petitioner from the said post rnala fide.
1. That facts in nutshell giving rise to the petition are that the petitioner claims to be possessing expertise and knowledge in the field of agriculture technologies. He claims to possess a degree of M.Sc. (Agriculture) from the University of Sindh Jamshoro in the year 1966 hiving specialization in the field of Agronomy. Petitioner claims to have started his service in the field of agriculture in the year 1968 and was an officer of BPS-19 in the Agriculture Extension Wing of Agriculture Department.
According to the petitioner he was mature for promotion to BPS-20 but to his misfortune the promotion of the petitioner was withheld and deferred for various reasons. According to the petitioner he held the post of Director-General Agricultural Extension Hyderabad, Sindh for more than two years and his performance throughout remained satisfactory. The post of Director- General against which the respondent No,3 was posted was a highly technical post requiring expertise in the field of Agriculture Science but respondent No,3 did not possess the required qualification, thus the notification whereby the respondent No,3 was appointed on the post of Director-General (Extension) is without jurisdiction.
2. The comments were filed on behalf of the respondents Nos.2 and 3 in which the claim of the petitioner was denied except that it was admitted that the respondent No,3 was appointed by a notification issued by the respondent No,1 . It was further asserted that the respondent No,3 was appointed by way of "transfer" as such the respondent was neither "Appointed" nor was "Promoted" but he was merely transferred. It was further pleaded that the petitioner was not an "aggrieved person" and as such was not competent to challenge the Notification dated 20-8-1999. It was further stated in the comments that the petitioner was a "civil" servant" and since the petition related to terms and conditions of his service, the Constitutional jurisdiction of this Court was barred. It was further stated that the petitioner being "Civil Servant" was liable to serve anywhere, as it was discretion of the Government to transfer the petitioner anywhere and he being a Government employee cannot raise objection to his transfer. It was next stated that previously also Government of Sindh had been positing various officers of the District Management Group against the post of Director-General which was never objected to by anyone. It was further stated that the matter fell within the exclusive jurisdiction of the Sindh Service Tribunal and petition was hit by the provisions of Article 212 of the Constitution.
3. We have heard Mr. Jhamat Jethanand, learned counsel for the petitioner, Mr. Masood Ahmed Noorani, Addl. A.-G. For respondent No,1 and Mr. Ejaz Ali Hakro, for respondents Nos.2 and 3.
4. It has been contended by the learned counsel for petitioner that by virtue of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, the respondent No,3 was not qualified to hold the post of Director-General Agriculture Extension Sindh. Learned counsel has further argued that since the petition does not relate to the terms and conditions, of the petitioner and therefore, neither the jurisdiction of Service Tribunal was attracted nor the petition will be hit by Article 212 of the Constitution. Even otherwise, according to him, the bar contained in Article 212 was not exclusive. Learned counsel next argued that there is no dispute with regard to the qualification and knowhow being possessed by the petitioner who is an employee of the Agriculture Department and by posting of the respondent No,3 his rights have been effected as such he has an interest in the matter.
5. Mr. Masood Ahmed Noorani, Addl. A.-G. For respondent No,1 submits that the petitioner was admittedly a 'Civil Servant' and since the petition relates to the terms and conditions of his service, the matter was within the purview of Service Tribunal. He further contended that it was sole discretion of the Government to appoint anybody against any post and petitioner has not locus standi to challenge the said appointment. In the alternate he argued that the petitioner was not an "aggrieved person" to invoke the Constitutional jurisdiction of this Court.
6. Mr. Ejaz Ali Hakro, learned Advocate for respondents Nos.2 and 3 adopted the arguments of learned Addl. A.-G. And further contended that the relief sought by the petitioner cannot be granted to him, as the petitioner was not in Grade 20, therefore, was not fit for appointment against the said post. Referring to section 10 of the Sindh Civil Servants Act, 1973 learned counsel sought to argue that transfer was one of the terms and conditions of the service and a civil servant can be transferred according to exigencies of the post and that civil servant will not have a vested right to be posted against a particular post. In support of his arguments learned counsel has relied upon
(i) PLD 2000 Pesh. 1 (c), (ii) 1997 SCMR 167, (iii) 1992 SCMR 1843, (iv) 1996 SCMR 1649, (v) 1999 SCMR 784 and (v) 1998 SCMR 1948.
7. The maintainability of the petition had to be judged in the light of the provisions contained in Article 199 of the Constitution clause (1) of this Article contains three distinct sub-clauses (a), (b) and (c) conferring thereby specific powers on this Court to make orders of different kind in different situation. While sub-clause (a) is prefaced with the words, "On the application of an aggrieved party", and sub-clause (c) is prefaced with the words, "on the application of an aggrieved person, sub-clause (b) significantly omits the phrase, "aggrieved party" and is worded as under: "(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c)
8. The above legal position in respect of parameteria provisions contained in Article 98 of the 1962 Constitution came to be considered by the Honourable Supreme Court in the case, M.U.A. Khan v.
Rana M. Sultan and another PLD 1974 SC 228 and the Honourable Supreme Court was pleased to observe as under: ' "It will be seen that for the purpose of applications contemplated under sub-clause (b) the petitioner did not have to be an aggrieved party; he could be "any person". The reason for this distinction between the position of the petitioner under sub-clauses (a) and (c) on the one hand and sub-clause (b) on the other is that the matters contemplated by sub-clause (b) are of public importance and interest, and it is enough that they are brought to the notice of the Court, without the petitioner having any personal interest in the matter. The High Court was, therefore, in error in thinking the petitioner before them had to be an aggrieved party for the purposes of urging any of the grounds against the validity of the respondent's appointment to a public office. The learned counsel for the respondent frankly conceded that he could not defend the view expressed in this behalf by the High Court.
' There can be little doubt that the appointment held by the respondent is in the nature of a public office. As pointed out by this Court in Masood-ul-Hassan v. Khadim Hussain, public office is an office, created by the State, by charter of, by statute, when the duties attached to this office are of a public nature. In the instant cases, the office of the Chief Inspector of Mines is a statutory office created by the State under section 4 of the Mines Act. The duties and functions of this office are also of a public nature, dealing with the regulation of the working of mines in the Province. It is, therefore, clear that the petitioner instituted by the appellant was maintainable under sub-clause
(b) (ii) of clause (2) of Article 98 of the 1962 Constitution read with the Provisional Constitution Order, 1969."
9. In the above-cited case the appointment of the respondent as Inspector of Mines was called in question and the Honourable Supreme Court was pleased to hold that the order/writ in the nature of quo warranto can be issued against the holder of a public office which was created by the State.
10. The Honourable Supreme Court in somewhat similar circumstances expressed the same view in the cases of Al-Jehad Trust reported in PLD 1996 SC 324 and Malik Asad Ali and others v. Federation of Pakistan reported in PLD 1998 SC 161.
11. In yet another case titled Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and 2 others reported in 2000 SCMR 1720, Honourable Apex Court was pleased to hold as under:- ' "Under Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of public office to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of qua warranto is instituted the duty of the petitioner is to lay information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood-ul-Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against personas who claimed or usurped an office, franchise or liberty and was intended to inquire by what authority he supported his claim in order that right to 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. Similarly in the case of M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228) this Court held that 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 of statute by the State".
Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir i,e, Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S.) 289), it was observed that any person can move the High Court to challenge the unauthorized occupation of a public office on any such application Court is not only 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 have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment."
' In the said report it was fully observed: "It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujuhideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) and Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliaments Affairs, Islamabad and others (PLD 1998 Supreme Court 161). Thus, we are persuaded to hold that Secretary-General, Workers' Union i,e, respondent No,3 legitimately invoked the jurisdiction of the Court by filing writ in the nature of quo warranto challenging the status of petitioner to hold the office in BPS-19 in G.D.A."
12. The admitted position is that respondent No,3 at the relevant time was holding the post of Director-General Agriculture Extension, which is a public office, under the contemplation of Article 199(2)(b)(ii) of the Constitution. As such, this Court was competent to make an order requiring the said respondent No,3 to show under what authority of law, he was holding such office.
13. That before the issuance of impugned notification, the petitioner before us was holding the post of Director-General, Agricultural Extension Sindh, Hyderabad. Through the impugned Notification dated 20-8-1999 he was transferred and in his place respondent No,3 was appointed. The petitioner having previously occupied the said post and being future aspirant for the same was a person interested. In view of the law laid down by the Honourable Supreme Court, as referred above, there remains no doubt to hold that the petitioner has the locus standi to invoke the jurisdiction of. This Court, and we accordingly hold that the petition was maintainable having been competently filed.
14. We have considered the case-law cited by the learned counsel for respondents. Besides, the legal objection which has been discussed above in detail, the entire case-law referred by the learned counsel is on the point that a Government Official has no vested right to be appointed against a particular post. It was further held in the above authorities that an officer was not competent to impugn his transfer and to invoke the Constitutional jurisdiction of this Court to challenge the order of transfer. There is no cavil with the proposition of law that the transfer falls within the ambit of terms and conditions of civil servant and a civil servant cannot ask for posting of his choice. It is settled principle of law that the transfer cannot be challenged by invoking the Constitutional jurisdiction. We are, accordingly not inclined to disturb the order of transferring the petitioner, as he is not entitled to any such relief.
15. Having arrived at the conclusion that the petition was legally maintainable, we now proceed to examine as to whether the appointment of respondent No,3 by way of transfer was lawful and in accordance with the provisions of Sindh Civil Servants (Appointment, Promotion and Transfer)
Rules, 1974.
16. Before adverting to the circumstances of the present case it will be pertinent to state that the appointment of a 'Civil Servant' can be made by three modes viz. (i) by way of initial recruitment;
(ii) by way of promotion, and (iii) by way of transfer.
17. So far as the case in hand is concerned, the Government of Sindh viz. Respondent No,1 in pursuance of sub-rule (2) of Rule 3 of Sindh Civil Servants (Appointment, Promotion and Transfer)
Rules, 1974, had prescribed the method of appointment to the post of Director-General, Agriculture Extension Sindh vide notification dated 21-3-1993, which has been placed on record. It will be advantageous to reproduce the said Notification hereunder.
"NOTIFICATION ' No, S.O. (A-I)/DA-933/88 (P-II).--In pursuance of sub-rule (2) of Rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and with the concurrence of the Service and General Administration Department, and Sindh Public Service Commission, the method, qualification and other conditions of appointment to posts B-16 and above in the Agriculture Extension are prescribed in the following statement:-- STATEMENT Sr No.Name of the post with BPSMethod of appointmentQualification/Experience necessary for initial recruitment.Age Limit Min.
Max 1.Director- General Agriculture Extension Sindh (BPS-20)By promotion from amongst the Director of Agriculture Extension BPS-19 having at least 17 years service in BPS-17 and above Or length of service as prescribed by the Government time to time.
Or By transfer of Directors-Generals of other Wings of Agriculture Department
18. Thus from above it is obvious that according to the provisions of said notification, a person can be appointed as Director-General, Agriculture Extension Sindh, either by promotion from amongst the Directors, Agriculture Extension (BPS-19) having at least 17 years' service in BPS-17 and above or length of service as prescribed by the Government from time to time; or by transfer of Director- General of other Wings of Agriculture Department. It therefore follows that the post of Director- General can be filled only by the abovementioned two methods which are either by promotion or by transfer. The appointment by way of transfer can be made only be transferring a Director- General of other Wings of Agriculture Department. In this particular case, the respondent No,3 was admittedly appointed by way of transfer as apparent from the impugned notification. According to the contents of the notification at the time of his transfer respondent No,3 who was an officer of Ex- PCS cadre was working as Secretary, Board of Revenue Sindh and certainly was not working as Director-General of any other Wings of the Agriculture Department as required under the said notification. There can be no two opinions that the Government shall be the sole judge to appoint any person against any post, subject, however, to the qualifications as prescribed under the Rules framed under the Sindh Civil Servants Act, 1973. The notification dated 21-3-1993 contains the required qualifications for the holder of the said office. The said notification prescribing the qualifications having been issued under the provisions of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 has the force of law. The position was never disputed by the learned Additional Advocate-General Sindh as well as learned counsel for the respondents Nos.2 and 3.
19. In view of the above factual and legal position, it will be evident that the appointment of respondent No,3 against the said post was in contravention of the provisions contained in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, as he did not possess the requisite qualification as prescribed in the said Rules, as such his posting/appointment was not lawful.
' For the foregoing reasons, it is hereby declared that the impugned notification dated 20-8-1993 to the extent of appointment of respondent No,3 against the post of Director-General, Agricultural Extension, Sindh Hyderabad was null and void and is declared to be without lawful authority and of no legal effect.
20. Following the law laid down by the Honourable Supreme Court on Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), we hold that all actions taken and orders passed by respondent No,3 in his capacity as Director-General Agriculture Extension, Hyderabad from the date of his appointment till the date of this judgment will be deemed to have been validly taken and passed and will not open to any challenge on the ground of defect in the appointment of respondent No,3 as Director-General.
' The petition stands allowed in the above terms.