ORDER SHEET
HIGH COURT OF SINDH CIRCUIT COURT,
HYDERABAD
Before:-
Mr. Justice Nadeem Akhtar
Mr. Justice Adnan-ul-Karim Memon
CP No. D- 411 of 2012
[ Najaf Ali Shah v. Province of Sindh and others]
CP No. D- 1219 of 2012
[ Shahid Hussain v. Province of Sindh and others]
CP No. D-359 of 2013
[ Muhammad Siddique v. Province of Sindh and others]
CP No. D- 1610 of 2019
[ Aamir Hussain Bhatti v. Province of Sindh]
CP No. D- 1614 of 2019
[ Shakir Hussain Bhatti v. Province of Sindh and others]
CP No. D- 798 of 2020
[ Nadir Abbas v. Province of Sindh and others]
M/s Abdul Ghafoor Hakro, Riazuddin Qureshi & Muhammad
Rahim Gajju, advocates for petitioners
Mr. Rafique Ahmed Dahri, Assistant A.G Sindh
Date of hearing & Order:
18.11.2021
***
ORDER
ADNAN-UL-KARIM MEMON, J: - Through the instant petitions, the petitioners
are seeking direction to the respondents to appoint them on any suitable post
as per their qualification, on the quota reserved for the employees who stood
retired from the service under the policy.
2. We asked the learned counsel(s) to satisfy this Court as to how these
petitions are maintainable under Article 199 of the Constitution about the
appointment of sons of deceased / retired and serving employees of the
respondent-departments, in the light of Rule 11-A of Sindh Civil Servant
(Appointment, Promotion, and Transfer Rules, 1974), which speaks of only
deceased quota and not son quota.
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3. Learned counsel for the petitioners, has replied that the respondents
were / are reluctant to appoint the petitioners in the light of policy decision of
the respondent departments on the subject issue. They have averred that they
have a legitimate right to know the reasons for declining their request for the
appointment by the competent authority. They further argued that after their
fathers / mothers' retirement from the service of the respondent-departments
they have the right to ask for the appointment under the aforesaid policy. They
prayed for direction to the competent authority of the respondent departments
to appoint them on any ministerial post based on son quota.
4. We have heard the learned counsel for the petitioners on the issue of
son quota under the aforesaid policy decision and perused the material on
record.
5. Prima facie, the issue is related to the appointment based on son quota
in the respondent departments. The important question involved in the present
petitions is that whether the Petitioners’ son is entitled to be appointed on the
son quota basis because of policy decisions.
6. Thus Rule 11-A of Sindh Civil Servant (Appointment, Promotion, and
Transfer) Rules, 1974 fully attracts in their case, which spells out that where a
civil servant dies while in service or is declared invalidated or incapacitated for
further service, one of his/her children or, as the case may be a widow (when
all the children of the deceased employees are minor) shall be provided job on
any of the basic scales 1 to 15, in the Department where such civil servant
was working provided that such appointment shall be made after fulfillment of
formalities as required in the recruitment rules and holding interview, for the
post applied for.
7. To clarify the legal position that has emerged in the present case we
first take up the legal issue of appointment in various departments of Sindh
Government through policy decision as provided under Rule-10-A & 11-A of
Sindh Civil Servant (Appointment, Promotion, and Transfer Rules, 1974). After
thorough examination, we have noticed that Rule 10-A & Rule 11-A until 30th
July 2011, published on 01.09.2011 was as follows:
“10-A.Notwithstanding anything contained in these rules, where a civil
servant dies while in service or is declared invalidated or incapacitated
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for further service, one of his unemployed children or, as the case may
be widow (when all the children of the deceased employee are minor)
may be employed against a post meant for initial appointment in BPS16
and 17 for which he / she possess the minimum qualifications prescribed
to that post; Provided that such child or widow may be given ten
additional marks in the aggregate by the Sindh Public Service
Commission or the appropriate Selection Board or Committee if he or
she otherwise qualifies the test, examination or interview; Provided
further that a person who may have applied under this rule and qualifies
purely on merit shall not be awarded any additional marks and his
selection shall be made on merit and not under this rule; Provided
further that the cut of date shall be within two years of the death of the
officer or official.
11-A. Where a civil servant dies while in service or is declared
invalidated or incapacitated for further service, one of his/her children or,
as the case may be, widow (when all the children of the deceased
employee are minor) shall be provided job who applies within a period of
two years of death or declaration of invalidity of incapacity of civil
servant on any of the basic pay scales No.1 to 15 in the Department
where such civil servant was working; Provided that such appointment
shall be made after fulfillment of formalities as required in the
requirement rules and holding interview, for the post applied for;
provided further that the cut of date shall be within two years of the
death of the officer or official”
8. Third proviso of Rule 10-A as well as the second proviso of Rule 11- A,
specifically provides a cutoff date for making the application for appointment
under deceased employees quota within 2 years of the occurrence of death of
the Government Official. Through a further Notification dated 16.09.2014, two
further provisos were added in Rule 10-A and 11-A and they are as follows:-
“1. Under Rule 10-A, after third proviso, the following fourth
proviso shall be added: - “Provided further that if a right of
employment has already accrued to any of the children of
deceased or invalidated or incapacitated civil servant then the
former shall not be deprived of the benefit accrued to him under
Notification dated 11.03.2008 and 17.07.2009 of these rules.” 2.
Under Rule 11-A, after second proviso, the following third
proviso shall be added: - “Provided further that if a right of
employment has already accrued to any of the children of
deceased or invalidated or incapacitated civil servant then the
former shall not be deprived of the benefit accrued to him under
Notifications dated 11.03.2008 and 17.07.2009 of these rules”
9. We are also cognizant of the fact that Honorable Supreme Court in CP.
No. 482-K & 503-K of 2016 vide order dated 10.08.2016 has held that the
above two provisos added by Notification dated 16.09.2014 omit the
application of Notifications dated 11.03.2008 and 17.07.2009 to those
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candidates under the above quota whose right of employment has already
occurred. In Notification dated 17.07.2009, the cutoff date for making the
application for employment under the above quota was provided as
17.07.2009. It is clear from Notification dated 16.09.2014 that the clog of two
years for making the application for employment under deceased quota for the
children who have already applied for employment before making of this rule,
was done away.
10. In the light of above discussion, it is crystal clear that the respondent
departments has to make recruitment to every post applied by the candidates
on open merit as well as based on invalidated or incapacitated / minority /
differently-abled and deceased quota reserved for those employees by issuing
appointment order by invoking Rule 11-A of Sindh Civil Servants
(Appointment, Promotion, and Transfer) Rules, 1974.
11. In our view public employment is a source of livelihood; therefore, no
citizen shall be discriminated in the said matter on the grounds as provided
under Article 27 of the Constitution. The government is bound to make certain
quotas in appointments or posts in favour of any less privileged class of citizen
which in the opinion of the government is not adequately represented in the
services under the state. That’s why Rule 11-A of Sindh Civil Servants
(Appointment, Promotion, and Transfer) Rules, 1974 as amended up-to-date
is introduced to cater that situation to accommodate the aforesaid categories
of civil servants.
12. Before parting with this order, we may observe that the appointment in
the public office can only be made through competitive process on merit as
provided under the recruitment rules and not otherwise as discussed supra. It
is well-settled law that appointments in public office are to be made strictly
under applicable rules and regulations without any discrimination and in a
transparent manner. Thus, all appointments in the public institution must be
based on a process that is palpably and tangibly fair and within the parameters
of its applicable rules, regulations, and bylaws. However, if the candidate has
applied based on Rule 11-A of Sindh Civil Servants (Appointment, Promotion,
and Transfer) Rules, 1974, he can be accommodated subject to his
qualification for the post under the dicta laid down by the Honorable Supreme
Court of Pakistan in the case referred to hereinabove. On the aforesaid
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proposition, if any case law is needed to fortify our view a reference can be
made to the following cases decided by the Hon’ble Supreme Court of
Pakistan (1) Muhammad Yaseen v. Federation of Pakistan, PLD 2012 SC 132,
Muhammad Ashraf Tiwana v. Pakistan, 2013 SCMR 1159, Tariq Azizuddin: in
re, 2010 SCMR 1301, Mahmood Akhtar Naqvi v. Federation of Pakistan, PLD
2013 SC 195, Contempt Proceedings against Chief Secretary Sindh and
others, 2013 SCMR 1752 and Syed Mubashir Raza Jafri and others v.
Employees Old-age Benefits Institution (EOBI), 2014 SCMR 949. However, it
is made clear that though the competent authority is blessed with the authority
to relax rules under the relevant law, only in cases of hardship and for special
reasons justifying the same. On the aforesaid proposition, the law laid down by
the Hon’ble Supreme Court in the case of Chief Secretary Punjab v. Abdul
Rauf Dasti, 2006 SCMR 1876 is clear in its terms, need no further deliberation
on our part.
13. In the light of the above rule position, no further action is required on
our part in exercising the power under Article 199 of the Constitution on the
premise that the petitioners failed to point out any violation of their
fundamental right ; and, merely agitating the claim that either the parents and /
or their sons / daughters were not accommodated for the job was / is no
ground to direct the official respondents to make appoint based on son quota,
which is alien to the service jurisprudence. However, the petitioners are at
liberty to apply for the post on merit as and when the vacancy occurs in the
office of respondent-departments.
14. Resultantly, these petitions merits no consideration and are accordingly
dismissed along with the pending application(s), with the above observations.
JUDGE
JUDGE
Sajjad Ali Jessar
