JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No.4696-P/2016.

Munawar Khan

Vs.

Government of KPK and others.

JUDGMENT

Date of hearing: 06.04.2017

Petitioner(s): By Mr.M.Asif Yousafzai, advocate.

Respondent(s): By Syed Qaiser Ali Shah, AAG and Mr.Daniyal

Khan Chamkani, advocate.

***** 

IJAZ ANWAR, J. - The petitioner has filed this

petition under Article 199 (i) & (b) (ii) of the Constitution

of Islamic Republic of Pakistan, 1973 in the nature of quo

warranto, questioning the Notification No. SO

(E.1)E&AD/1-1/2016, dated 06.12.2016, whereby the

respondent No.5 was posted against the post of Director

Local Fund Audit (BPS-19), Finance Department in his

own pay and scale.

2. The petitioner has introduced himself as the

senior most Deputy Director (BS-18) of the same

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department and holding the post since 2010. He alleges that

in accordance with the rules, the post of Director is 100%

promotion post and can only be filled through transfer, if no

suitable person is available for promotion. He claimed that

the notification impugned is violation of the recruitment

Rules and the government instructions on the subject. He

argued that appointment by transfer of the respondent No.5

is without lawful authority and has no legal justification to

hold the post of Director, Local Audit Fund (BS-19).

3. The respondents have submitted their

comments and alleges that the post of Deputy Director

Local Fund Audit is temporarily vacant due to posting of

regular Director Local Fund Audit, as Director Fund Small

Industry Development Board; therefore, to fill this post

temporarily and as stop-gap arrangement, the respondent

No.5 was posted in his own pay and scale.

4. The learned AAG and counsel for the

respondent No.5 were heard. They also objected on the

jurisdiction of this Court and referred to different judgments

of the superior court on the lack of jurisdiction of this Court

in view of the bar contained in Article 212 of the

Constitution of Islamic Republic of Pakistan. The learned

AAG argued that since the petitioner is claiming his

promotion, therefore, cannot maintain the writ of quo

warranto.

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5. Arguments heard and record perused.

6. The appendix annexed with the Khyber

Pakhtunkhwa (Recruitment and Appointment) Rules, 1980,

notified by the Government vide Notification No.SOR-II

(S&GAD) 2-19/78, dated 04.02.1980 provides the mode of

filling the post of Director (BS-19) in the Department of

Local Fund Audit, Khyber Pakhtunkhwa for the

convenience, it is reproduced:-

(a) By promotion, on the basis of

seniority-cum-fitness, from amongst the
Deputy Directors with twelve years
service in BPS-17 and above; or

(b)If no suitable person is available for

promotion, then by transfer.

7. On examining the rules, it is found that the

post of Director (BS-19) is 100% promotion post and can

be filled through transfer, if no suitable person is available

for promotion. We have before us the seniority list wherein

the name of the respondent No.5 is placed at Sr. No.6. He

also lacks the twelve years service in BPS-17 as prescribed

under the rules. The provincial government has vide

circular letter No.SOR-I (S&GAD)1-29/75 (A), dated

13.2.1993 while relying on Rule 9 of Khyber Pakhtunkhwa

Civil Servants (Appointment, Promotion and Transfer)

Rules, 1989 and referring to the judgment of the Apex

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Court gave guidelines for filling the higher post in the

following manner:-

“The grant of higher appointments to

junior officers against senior posts amounts
to accelerated promotion in view of the
decision given by the Supreme Court of
Pakistan in the case of Government of
Pakistan vs. Qazi Abdul Karim. The
ministries/Divisions or Provincial
Governments can only fill vacancies in a
particular grade by officers of the same
grade, and officers in a junior grade will
not be appointed against a vacancy in a
higher grade”.

8. Similarly, Rule 9 of the Khyber Pakhtunkhwa

Civil Servants (Appointment, Promotion and Transfer)

Rules, 1989, also provides the mode in which the promotion

post is to be filled in temporarily. We have been informed

that the post of Director is not available for promotion, as

there is only one post and the incumbent promotee has been

temporarily posted out from the department, in any case, the

law will take its course and no deviation is permissible nor

this Court will allow any to take arbitrary decision in

violation of law and rules. During the course of arguments,

a summary that floated for filling the post of Director, Local

Fund Audit has been placed before the Court. We examined

it and found that the senior most officer of the department

was proposed by the Finance Department (Administrative

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Department in this case) to be posted as Director, however,

when it was placed before the Competent Authority, the

name of the respondent No.5 was picked, without any legal

justification or reasons that how he has been preferred over

the senior officer. This shows no application of mind and

violation of the rules. The august Supreme Court of

Pakistan in its famous judgment titled “Tariq Aziz-ud-Din

and others reported in 2010 SCMR-1301 held as:-

---Fair and transparent discretion, exercise

of ---Principles---Action must be based on
fair, open and just consideration to decide
matters more particularly when such
powers are to be exercised on discretion---
Arbitrariness in any manner is to be
avoided to ensure that action based on
discretion is fair and transparent---
Discretion is to be exercised according to
rational reasons which means that; there
be finding of primary facts based on good
evidence; and decisions about facts be
made for reasons which serve the purpose
of statute in an intelligible and reasonable
manner--- Actions which do not meet these
threshold requirements are considered
arbitrary and misuse of power---
Discretionary power conferred on
Government should be exercised
reasonably subject to existence of essential
conditions required for exercise of such
power with the scope of law---All judicial,
quasi judicial and administrative
authorities must exercise power in
reasonable manner and also must ensure
justice as per spirit of law and instruments
regarding exercise of discretion---
Obligation to act fairly on the part of
administrative authority has been evolved
to ensure rule of law and to prevent failure
of justice”.

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9. In the matter of posting the Apex Court

reiterated the Civil Servants (Appointment, Promotion and

Transfer) Rules, and held in the following words:-

(i)Civil Servants (Appointment, Promotion

and Transfer) Rules, 1973---

---R.&B---Appointment on acting charge

basis---Object and scope---Vested right---
Appointment on acting charge basis does
not confer any vested right for regular
promotion, as is evident from R.8-B of Civil
Servants (Appointment, Promotion an d
Transfer) Rules, 1973---In case where
appointing authority is satisfied that no
suitable officer is available to fill the post
and it is expedient to fill the same, it may
appoint to that post, on acting charge basis,
the most senior officer otherwise eligible
for promotion in the cadre or service as the
case may be”.

10. The objection regarding jurisdiction of this

Court is misconceived. The petitioner has never claimed his

entitlement to the post of Director (BS-19), however,

mainly thrown challenge to the appointment of the

respondent No.5 regarding his ineligibility, violation of

Rules and arbitrariness in posting him. The Apex Court in

its judgment reported in PLD 1997 Supreme Court-52 held

that any person can lay information to the court regarding a

public office being illegally occupied. The person laying

such information shall not necessarily be an aggrieved

person.

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11. We have given our anxious consideration to

the arguments of both sides and record of the case, finds

ourselves in agreement with the learned counsel for the

petitioner, that respondent No.5 could not justify, how can

he hold the post of Director, Local Audit Fund (BS-19)

firstly, he is not eligible under the Rules, secondly violation

of Rule 9 of the (Appointment, Promotion and Transfer)

Rules, 1989 in posting him, thirdly notification of posting is

arbitrary and without application of mind as the proposal of

the department was departed without any justifiable reason

and last but not the least it would create a sense of

deprivation and heart burning among the senior officers of

the department who can better shoulder this responsibility.

12. For what has been discussed above, the

impugned notification dated 06.12.2016 is struck down; the

writ asked for is accordingly issued with the direction to the

respondents to fill the post of Director, Local Fund Audit

(BS-19) in accordance with law within a period of two

months from the receipt of this judgment.

JUDGE

JUDGE
Announced.
Dated: 04.04.2017.
*T.Shah*

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