NAZEER AHMED DHOON Versus GOVERNMENT OF SINDH
This matter concerns a petition for leave to appeal against a judgment of the High Court of Sindh, which dismissed the petitioner's challenge to the appointment and promotion of several Assistant Commissioners. The petitioner contended that the appointments of respondents Nos. 3 to 28, made without routing through the Sindh Public Service Commission, were unlawful, and that the promotion of respondents Nos. 29 to 52 against reserved posts was irregular. The High Court had previously held that under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990, the Chief Minister possessed the authority to exclude certain posts from the Commission's purview in the public interest. Upon review, the Supreme Court noted that leave to appeal had already been granted in similar pending cases involving the same controversy regarding the induction of these respondents. Consequently, the Court granted leave to appeal specifically regarding the induction of respondents Nos. 3 to 28, who were appointed via a 'Selection Board' rather than the Sindh Public Service Commission, to determine if the High Court's view aligns with the law.
- Can the Chief Minister exclude specific posts from the purview of the Sindh Public Service Commission under the Sindh Public Service Commission (Functions) Rules, 1990?
- Is the induction of civil servants through a 'Selection Board' without reference to the Public Service Commission lawful?
- Does the High Court have jurisdiction to entertain a constitutional petition regarding civil service appointments, or does the matter fall exclusively under the Service Tribunal?
- Rule 5, Sindh Public Service Commission (Functions) Rules, 1990
- Rule 3(3), Sindh Public Service Commission (Functions) Rules, 1980
ORDER
CH. MUHAMMAD ARIF, J.‑‑‑ Leave is claimed against judgment dated 14‑11‑1997 made by a learned Division Bench of the High Court of Sindh, Karachi whereby petitioner's Constitution Petition No.D‑1929 of 1996 impugning the appointment of respondents Nos.3 to 28 as Assistant Commissioners on regular basis instead of ad hoc basis by withdrawal of the said posts from the purview of Sindh Public Service Commission, hereinafter referred to as Sindh Public Service Commission and the promotion of respondents Nos.29 to 52 as Assistant Commissioners against the reserved posts for the direct recruits was dismissed. The petitioner had prayed for declaration regarding his own eligibility for appointment as Assistant Commissioner being eligible for appointment as such being Member of the appropriate service discipline in the Province of Sindh. His plea that the appointment of respondents Nos.3 to 28 as also promotion of respondents Nas.29 to 52 as above should have been filled through Sindh Public Service Commission did not find favour to the High Court and the same was repelled and Constitution petition dismissed with the following observations, contained in the penultimate paragraph of the impugned judgment dated 14‑11‑1997:‑‑
"Rule 5 of Sindh Public Service Commission (Functions) Rules, 1990 empowers the Chief Minister in the public interest to specify posts which may be filled in without reference to the Commission. In the instant case also the Chief Minister has exercised said powers conferred under the above said rule and excluded the said posts of Assistant Commissioners to be filled in without reference to the Commission, therefore, the contention of the petitioner has no merit and substance. The petitioner had failed to show any law or rule whereunder the said appointments made by the respondent could be said to be illegal, unlawful and without lawful authority. The petitioner was himself recommended by the respondent No.2 against the post of Section Officer and was given such option with regard to' his acceptance which he accepted and joined as such, therefore, he could not be said to have any vested right to claim his appointment against the posts of Assistant Commissioners. The respondents have been appointed as Assistant Commissioners at the . recommendation of the Public Service Commission as such their appointments could not be said to be illegal or without jurisdiction."
This petition is barred by 24 days and an application seeking condonation of delay has been filed.
2. Petitioner has appeared in person and argued that the initial induction into service of respondents Nos.3 to 28 without the same having been routed through the Sindh Public Service Commission could not be treated as lawful with the subsequent direction to them to appear before the Commission for assessment of their suitability under sub‑rule (3) of Rule 3 of Sindh Public Service Commission (Functions) Rules, 1980. The said respondents' induction into service through a 'Selection Board' is sans any support from the law on the subject.
3. Mr. Muneeb Ahmed Khan, learned Additional Advocate‑General Sindh has appeared on behalf of the official respondents and contended that in some other cases arising out of the induction of both sets of the private respondents herein this Court has already granted leave to consider the question whether the controversy in question could be dealt with by the High Court in exercise of its Constitutional jurisdiction or by the Service Tribunal.
4. As leave has already been granted in similar cases including Civil Appeal No. 1350 of 1997, (arising out of C.P.L.A. No. 1001 of 1997) and Civil Appeals Nos. 1282 of 1998 to 1285 of 1998 (arising out of C.P.L.As. Nos.276‑K and 345‑K to 347‑K of 1998) we are inclined to grant leave in this case also subject to limitation in respect of respondents Nos.3 to 28 only who were inducted directly as Assistant Commissioners through a 'Selection Board' without going through the process of Sindh Public Service Commission to examine, whether the view found favour with the High Court in the impugned judgment is in consonance with law. Order accordingly. To be heard alongwith Civil Appeals Nos.1350 of 1997, 1282 to 1285 of 1998 and other connected cases. The above are our reasons for the short order of even date.
H.B.T./N‑34/S Leave to appeal granted.