MOHAMMAD ARSHAD Versus The PROVINCIAL GOVERNMENT through Chief Secretary, Khyber Pakhtunkhwa, Peshawar

SYED ARSHAD ALI, J.--- The pivotal questions for determination in this case are: Do the impugned posting and transfer notifications contravene the statutory framework governing the appointments, promotions, and transfers of civil servants in Khyber Pakhtunkhwa? Moreover, can junior and ex-cadre officers lawfully occupy positions on higher posts under the relevant laws and rules?

2. The petitioner, Mohammad Arshad, has filed the instant writ petition under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 ( "Constitution" ), seeking a writ of quo warranto. The petitioner challenges the validity of posting/transfer notifications dated 31.03.2023, 18.09.2023, and 05.10.2023 ( "posting orders" ), through which junior and ex-cadre officers, namely Respondents Nos. 5 to 11, were posted to posts reserved for Provincial Civil Service (PCS), Provincial Management Service (PMS), and Pakistan Administrative Service (PAS) officers. The petitioner alleges that these postings are mala fide, without jurisdiction, and in violation of various statutory provisions, including the Khyber Pakhtunkhwa Civil Servants Act, 1973 ( "1973 Act" ), and related rules. Despite formal requests, Respondents Nos. 2 and 3 failed to withdraw the impugned orders or provide justification, prompting the petitioner to seek judicial intervention.

3. Comments and replies were sought from the respondents. It is primarily contended that the petitioner is not an aggrieved person and, therefore, lacks the locus standi to file the present petition. It is further argued that posting and transfer are not perpetual rights of a civil servant, and that a civil servant can be posted anywhere to serve at a designated location in accordance with Section 10 of the 1973 Act. Additionally, in light of Article 212(2) of the Constitution, the subject matter of this petition pertains to the terms and conditions of a civil servant, and as such, this Court lacks jurisdiction in the matter. Since this petition raises significant questions that require interpretation of the Constitution and statutory law, notice was issued to the Advocate General of Khyber Pakhtunkhwa. For the assistance of the Court, Mr. Khalid Rehman and Mr. Javed Iqbal Gulbela were appointed as Amicus Curiae , and they provided both oral and written submissions in support of the maintainability of the petition.

4. We have anxiously considered the arguments of learned A.A.G. and counsels for the parties and thoroughly examined the record and material placed before us.

5. As the respondents have raised objections to the maintainability of this petition, we must address this issue first. The objections are based on two main grounds: first, that the petitioner is not an 'aggrieved person' to seek the issuance of a writ in the nature of quo warranto ; and second, that such matters can only be raised before the proper forum by an aggrieved person. Regarding the first objection, it must be noted that the present petition is in the nature of Public Interest Litigation ( "PIL" ). No doubt, the petitioner is a civil servant, however, through this petition, the petitioner has made no prayer for enforcement of his terms and conditions; his only grievance is the appointment of junior officer against the higher post on acting charge basis. In PIL, it is not strictly necessary for the petitioner to be an aggrieved person. Rather, such litigation is brought to enforce the public interest. Halsbury's Laws of India states that "lexically, the expression 'public interest litigation' means a legal action initiated in a court of law for the enforcement of public or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liability are affected." 1 In this sense, PIL serves as a transformative tool to overcome traditional legal, technical, and procedural barriers, ensuring justice-especially social justice-for individuals, groups, or communities. It empowers those who, due to personal limitations, economic hardships, societal marginalization, or state oppression, are unable to seek redress in a court of law. Moreover, litigation in public interest should be bona fide and for the promotion of public interest. In this regard, the Hon'ble Supreme Court of Pakistan in Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482) held as:

"10. No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word pro bono publico as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means for the public good or for welfare of the whole being or involving uncompensated legal services performed especially for the public good. Public interest in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as pro bono publico ."

Similarly, as regard the enlargement of the scope of aggrieved person in the context of public interest litigation, the apex Court in Premier Battery Industries Private Limited v. Karachi Water And Sewerage Board and others (2018 SCMR 365) held as follow:

"12. Coining to the alternative stand taken by learned counsel for the petitioner that the matter may be treated as 'public interest litigation'. It is noted that on realizing that the petitioner was unlikely to succeed in view of his failure to participate in the process at any stage, the learned counsel tried to persuade us to examine the matter as one of public importance to undo the process, which according to him, had been undertaken in violation of SPP Act, 2009 and the Rules framed thereunder. It was urged that the entire process be repeated afresh. This necessitates an examination of the scope and parameters of public interest litigation. Such litigation does not strictly fall under any part of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, it has received judicial recognition enabling the Courts to enlarge the scope of the meaning of 'aggrieved person' under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance requiring enforcement of Fundamental Rights. However, the constitutional jurisdiction of the superior Courts is required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that block or suspend the performance of executive functions by the Government."

6. It is now well settled that in the modern dispensation of constitutional justice, the term 'aggrieved person' under Article 199 encompasses a public-spirited individual who brings a matter of public importance to the attention of the Court. Turning now to the second aspect of the matter, namely, the locus standi of the petitioner to bring the instant claim against government functionaries. Locus standi is defined as follow:

"In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case." 2

7. Similarly, the Supreme Court of India in S.P. Gupta v. President of India and others (AIR 1982 SC 149) discussed the scope of locus standi in the following manner:

"14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born.".

8. The Supreme Court has, however, carved out a few exceptions to the traditional rule regarding locus standi, particularly in cases where an act or omission of the State or a public authority, in violation of the Constitution or the law, causes a public wrong or public injury. In this regard, the Supreme Court held:

" .We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened...."

9. The Constitution under Article 199(1)(ii)(b), empowers the High Court to issue an order directing any individual within its territorial jurisdiction who holds a public office to demonstrate the legal authority under which they claim to occupy that position. Notably, the Constitution explicitly provides that the applicant seeking such an order is not required to be an 'aggrieved person.' The Supreme Court of Pakistan on number of occasions elaborated this concept in detail. In Jawed Ahmed Mir v. Prof. Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi and others (2023 SCMR 162), the Supreme Court examined the overall scope of the writ of quo warranto and observed that in this type of jurisdiction it allows the High Court to examine whether an individual has unlawfully assumed a public office. Its primary purpose is to verify the legality of the officeholder's claim and determine compliance with the law . Unlike other legal remedies, this writ can be initiated without the applicant being an "aggrieved person." A whistleblower or any concerned member of the public acting in good faith may provide information prompting the court to question the officeholder's legal authority with the fundamental query: "What is your warrant for holding this office?" For a writ of quo warranto to be issued, the contested office must be public, established by statute or the Constitution, and substantive rather than discretionary. Grounds for issuing the writ include a lack of qualifications, improper appointing authority, or non-compliance with legal procedures. Once issued, the burden shifts to the officeholder to prove their appointment's legality. Thus, this writ safeguards public interest by ensuring that appointments adhere to constitutional and statutory provisions. In the present case, the petitioner seeks a writ of quo warranto , therefore, it is necessary to look into the concept of quo warranto under different jurisdictions. Halsbury's Laws of India explains quo warranto as follow:

"Quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against the law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reason of its apathy." 3

In Halsbury's Laws of England the quo warranto is explained as follow:

Quo warranto . An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.

An information in the nature of quo warranto lay only if the office was substantive in character, that is, an office independent in title, and if the holder of the office was an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. An information in the nature of a quo warranto lay in respect of an office held at pleasure, provided the office was one of a public and substantive character. 4

In American Jurisprudence the concept of quo warranto is elaborated as below:

Quo warranto is intended to prevent the exercise of powers that are not conferred by law, and is not ordinarily available to regulate the manner of exercising those powers. It cannot be used to test the legality of official actions of public corporations or officers, though it has been held that it may be used to determine whether a constitutional officer is attempting to usurp power not granted him by the constitution or laws. 5

10. The above explanations lead to the inescapable conclusion that quo warranto is a judicial remedy aimed at questioning the authority by which an individual occupies a substantive public office, franchise, or liberty. It safeguards against unlawful appointments and usurpation of public offices by ensuring compliance with legal and constitutional requirements. By empowering the judiciary to scrutinize executive actions, it protects public interests and maintains the rule of law. In Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114) , the Supreme Court of Pakistan held that the issuance of a writ of quo warranto lies within the discretion of the court. It further affirmed that the High Court has the authority to examine the motives and behavior of individuals contesting appointments to public office. The relevant portion of the judgment is reproduced below:

"There can be no cavil with the principle that to grant the relief in the nature of quo warranto is within the discretionary power of the superior Courts, it should not be allowed as a matter of course, rather the conduct and the bona fides of the relator, the cause and the object of filing such petition is of considerable importance and should be examined; it should be ascertained if the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else. We are of the considered view that quo warranto remedy should not be allowed to be a tool in the hands of the relators, who approach the court with mala fide intentions and either have their own personal grudges and scores to settle with the holder of the public office or are a proxy for someone else who has a similar object or motive."

11. Similarly, the petitioner, who is a BPS-20 Officer of the Province of the Khyber Pakhtunkhwa, seeks direction of this Court that the respondents-Government, while transferring the civil servants, should adhere to law, rules and standing instructions of the Provincial Government, therefore, the said relief claimed by the petitioner is in the nature of command to the departmental authority to adhere to the governing law while making appointments against important positions. This relief cannot be claimed through an appeal before the Services Tribunal established under the Khyber Pakhtunkhwa Services Tribunal Act, 1974 and can only be claimed from a Constitutional Court, which can issue mandamus to the relevant authorities to perform their obligations arising out of law. In this regard, reliance can be placed on the law laid down by the apex Court in the case of Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others (2006 PLC (C.S.) 1173).

12. In light of the above, the instant petition is held maintainable for the following reasons: on the face of the record, there appears to be no personal interest of the petitioner; rather, the relief sought pertains to public interest. Furthermore, in proceedings for a writ of quo warranto , it is not necessary for the person invoking the jurisdiction of the High Court to be an 'aggrieved person'. Therefore, we find no malice or personal interest on the part of the petitioner in filing the instant petition.

13. Reverting now to the merits of the case, the posting and transfer of civil servants in Khyber Pakhtunkhwa are governed by various laws and provisions. The Khyber Pakhtunkhwa Civil Servants Act, 1973 mandates that civil servants can be posted anywhere under federal, provincial, or local authorities, with protections for pay and terms if serving outside their cadre. The Khyber Pakhtunkhwa Government Rules of Business, 1972 stipulate that tenure posts and transfers require consultation with the Establishment and Administration Department, particularly for early tenure termination or holding multiple charges beyond four months. The Provincial Management Service Rules, 2007 allocate specific cadre-wise posting shares between the All Pakistan Unified Grades (APUG) and PMS officers. Similarly, the Provincial Civil Service (Secretariat Group) Rules, 1997 define the share of Secretariat and Executive Group officers in schedule posts across grades, reserving a percentage for technical department officers. The Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989 ("APT Rules") , regulate acting or current charge appointments, specifying eligibility, seniority, and the duration of vacancies, with acting charge appointments requiring recommendations by the relevant promotion boards and no entitlement to regular promotion. These laws collectively ensure equitable and systematic postings while safeguarding administrative needs and officers' rights.

14. In the present matter, the petitioner has challenged the posting orders of respondents Nos. 5 to 11 primarily on two subsidiary grounds: first, that the respondents are either junior or belong to an ex-cadre; and second, that they have been posted to higher positions. To assess the alleged illegality of the impugned posting orders, it is essential to review the standing orders, instructions, or policies issued from time to time by the Provincial Government regarding the posting of civil servants to higher positions. The relevant instructions are reproduced below:

Appointments in higher grades (1979).

A number of cases have come to notice where Ministries/ Divisions and Provincial Governments have made appointments of officers serving under them to posts in higher grades without the prior approval of the competent authority or going through the prescribed selection procedures. This 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 v. Qazi Abdul Karim. In future such vacancies will be reported to the Establishment Division so that eligible officers may be considered and recommended for promotion by the Competent Authority in accordance with the Rules.

2. The President has been pleased to direct that appointments of officers of lower grades to posts in higher grades without going through the prescribed selection process, must cease with immediate effect. The Ministries/Divisions and 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. If it is necessary to do so due to exigencies of service, the post should be downgraded with the approval of the Establishment Division. When making such a request it will be clearly stated why the vacancy should not be referred to the Central Selection Board/High Level Selection Board/appropriate Departmental Promotion Committee for the promotion of an eligible officer to fill the vacancy in the appropriate grade in accordance with the rules.

(Authority: O.M No.2/ 25/ 69-C.I, dated 31.7.79, circulated by S&GAD NWFP vide letter No.SORI(S83GAD )1-29/ 75 (KW, dated 20.8.79)

Appointment in Higher Grades/Posts (1985).

Instances have come to notice of Federal Government where civil servants have been appointed to higher posts and subsequently these posts have been downgraded retrospectively and without the prior approval of the competent authority. This is not in keeping with the Establishment Division OM No.2 /25/69-C1, dated 31st July, 1979 circulated vide S&GAD circular letter No.SORI (S&GAD) 1- 29 / 75(KW), dated 20th August, 1979. It is, therefore, reiterated that whenever a post is required to be downgraded due to exigencies of service, it may please be referred to this Department for approval.

2. Besides, all cases in which action may have been taken in contravention of the instructions issued on the subject may please be referred to the S&GAD for final orders.

(Authority: Letter No. SORI(S&GAD) 1-29/ 75, dated 14.9.1985)

Appointment in Higher Grades/Posts (1986).

Instances have come to the notice where civil servants in lower grades have been appointed to higher posts but the posts have not been downgraded with the result that the concerned civil servants come up with requests for promotion benefits in view of the decision given by the Supreme Court of Pakistan in the case of 'Government of Pakistan v. Qazi Abdul Karim'. This is in contravention of the above instructions which is not desirable administratively.

2. It appears that either the aforesaid instructions have been lost sight or these instructions have not been brought to the notice of all concerned. It is, therefore, re-iterated that the Provincial Government can only fill vacancies in a particular grade by officers of the same grade and officers of junior grade will not be appointed against a vacancy in a higher grade. If it is necessary to do so, due to exigencies of service, the post should be downgraded with the approval in the first instance of the S&GAD who will seek approval of the Finance Department.

3. This issues with the concurrence of Finance Department.

(Authority: Letter No. SOR1(S&GAD)1-29/ 75, dated 25.2.1986.)

Appointment in Higher Grades/Posts (1987).

The President directed that appointment of officers of lower grades to posts in higher grades without going through the prescribed selection process must cease and that vacancies in a particular grade shall only be filled by officers of the same grade. It has been reported that these instructions are not being followed by some of the departments and Civil Servants in lower grades continue to be appointed against posts in higher scales without downgrading them.

2. While replying to Supplementary question on 21st October,1987, the Chief Minister, NWFP was pleased to give an assurance to the Provincial Assembly to the effect that as per instructions already issued by Government to all Departments, no officer in lower grades shall henceforth be posted against vacancies in higher grades and that all such posts shall in future be filled in on regular basis by way of promotion or through initial recruitment, as the case may be, in accordance with the prescribed manner.

3. I am, therefore, to request that the above instructions may kindly be brought to the notice of all concerned once again and that they may be directed to abide by these instructions in letter and spirit.

(Authority: Circular letter No. SORI (S&GAD) 1- 29/ 75,dated 19.11.1987)

Appointment against higher post (1997).

A point has been raised by the District Accounts Officer, Mansehra whether a higher post can be filled in for indefinite period by appointment of an incumbent holding lower post without having relevancy to the nature of duty and basic qualification of the post etc or otherwise?

2. In this connection attention is invited to the Government of NWFP S&GAD's Circular letter No.SORI(S&GAD)1-29/75(A), dated 5th July,1994 wherein the position has fully been explained. However, the point has carefully been re-examined in the Finance Department. At the very outset it is made clear that for all intents and purposes, the NWFP Civil Servants Act, 1973 being the latest instrument, duly approved by the NWFP Provincial Assembly and the NWFP Civil Servants (Appointment, Promotion and Transfer), Rules,1989 which have been framed under Section 26 of Act ibid have to be followed in the matter of appointments.

3. Under Section 5 of the NWFP Civil Servants Act,1973, the appointment to a Civil Service of the Province or to a post in connection with the affairs of the Province shall be made in the prescribed method by the Governor or by a person authorised by the Governor on that behalf.

4. Under Rule 3(2) of the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules,1989,the method of appointment, qualifications and other conditions applicable to a post shall be such as laid down by the department concerned in consultation with Services and General Admn. Department and Finance Department.

5. Under Rule 10(3) of the above mentioned Rules, a candidate for initial appointment to a post must possess the educational or technical qualifications and experience.

6. The appointment by initial recruitment to a higher post or to a different post has to be made strictly in the prescribed manner and any deviation would not be in accordance with law and rules on the subject. The phrase "adjustment" is also not covered under the above rules. Moreover, an opportunity of appointment against a higher post is available to serving Government servants and they in accordance with the provisions contained in Rule 9 of the NWFP Civil Servants (Appointment, Promotion and Transfer), Rules,1989 can be appointed on Acting Charge or Current Charge basis.

7. In the circumstances, the reply to the point as raised in para-1 above that whether a higher post can be filled in for indefinite period by appointment of an incumbent holding lower post without having relevancy to the nature of duty and basic qualification of the post etc is in negative.

(Authority: Finance Department's Circular letter No.FD/ PRC-5-1/ 96-97, dated 29.4.97 and recirculated by S&GAD vide letter No.SORI(S&GAD)1- 29/ 75(B), dated 10.5.1997)

Unauthorised appointments to higher posts (1988).

In continuation of Establishment Division's O.M No.2 /25/69-C.I, dated 31.7.1979, the undersigned is directed to say that it has been observed with regret that despite repeated instructions issued by the Establishment Division regarding appointment of Government servants against higher posts other than in accordance with rules and prescribed procedure, 76 Ministries/Divisions and Departments of the Federal Government and the Provincial Governments (in the case of officers belonging to Occupational Groups controlled by the Establishment Division) continue to make appointments to higher posts occasionally in disregard of the above instructions. Officers appointed to higher posts without going through the prescribed selection process and approval of the competent authority claim pay and allowances of the higher posts on the basis of judgements of the Federal Service Tribunal and the Supreme Court of Pakistan in a number of such cases. This places the Government in an awkward position as pay and allowances of the higher posts have to be allowed to individuals who have not been regularly promoted and who are some time not even qualified or eligible for promotion. It also causes heart burning and resentment among their seniors who were serving elsewhere or were bypassed at the time of making such irregular appointments.

2. While such irregular appointments are claimed to be made in public interest and under unavoidable circumstances, it has once again to be emphasized that appointments to higher post in disregard of the prescribed rules and procedure should be avoided under all circumstances. Various provisions already exist in the rules for making appointments on acting charge, current charge and additional charge basis, to tide over temporary difficulties. It is therefore again reiterated that in future appointments against higher posts should only be made either on a regular basis in the prescribed manner, or on acting charge or current charge basis in accordance with the provision of Civil Servants (Appointment, Promotion and Transfer), Rules, 1989 and relevant instructions issued by the Government from time to time.

3. Disregard of the above instructions would be viewed seriously and may result in bringing the matter to the notice of the Prime Minister.

(Authority: Estt: Division OM No.14/ 4/ 86-R.I, dated 2.5.1988 circulated by NWFP vide Circular letter No. SORI(S&GAD)1-29/ 75, dated 23. 5. 1988)

Unauthorised Appointments to Higher Posts (1993).

This Department's Circular letter of even number dated 23.5.1988, on the subject cited above, which clearly provides that the appointments against the higher posts should be made in the manner prescribed in the rules for those posts. Notwithstanding this, instances have come to the notice that un-authorised appointments to higher posts without going through the prescribed selection process or obtaining approval of the competent authority are being made by Provincial Government Departments. This creates embarrassing position when the officers concerned prefer claim for pay of the higher posts.

2. I am directed to request you once again to strictly follow the instructions as referred to above while making appointments against higher posts. In future, no claim of pay of higher post in cases of un-authorised appointment will be considered by S&GAD.

(Authority: Circular letter No.SORI(S&GAD)1-29/ 75(A), dated 13.2.1993)

15. The outlined instructions across various years collectively emphasize that appointments of civil servants to higher grades or posts must strictly adhere to prescribed rules, procedures, and approvals to maintain administrative integrity and fairness. The instructions, originating from both federal and provincial governments, repeatedly prohibit unauthorized promotions or appointments that bypass selection procedures or the approval of competent authorities. This practice is considered irregular, creating legal and financial complications, fostering resentment among eligible officers, and undermining merit-based promotions.

16. The core principle reiterated in these directives is that vacancies in higher grades should only be filled by officers of the same grade, either through regular promotions or as per specific provisions like acting charge or current charge arrangements. If exigencies demand otherwise, the posts must first be downgraded with proper authorization. The consistent message is clear: adherence to established rules and procedures is paramount, and any deviation will be viewed seriously, with potential disciplinary consequences for the departments involved. As regard the binding force of the Office Memorandums/instructions, the Supreme Court in Muhammad Saleem v. Federal Public Service Commission and others (2020 SCMR 2021) held:

"16. If, as we have just concluded, the legal source from which the Office Memorandums emanate is the rule making power, it necessarily follows that they are co-equal with other rules framed in terms thereof, such as the APT Rules. In other words, they cannot be considered subordinate to such rules. It follows from this that the Office Memorandums cannot, in case of any inconsistency, be regarded as yielding to the rules otherwise made under section 25 (i.e., more formally with specific reference thereto). Since in the legal hierarchy they are of equal standing, the Office Memorandums and rules such as the APT Rules must be read together in a harmonized and consistent manner, to the maximum extent possible. It is only if there is an irreconcilable difference that the question of which will prevail would arise. And that question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc. Which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operate. However, with respect, the submission made by learned counsel for the appellant, that rules such as the APT Rules are (as it were) of a higher legal order or standing and will therefore always and automatically prevail over the Office Memorandums cannot be accepted. They are aspects of the same delegated power conferred by the 1973 Act on the Executive branch. It may be reiterated that it is the Legislative branch alone which has been conferred an independent and direct grant on the constitutional plane. Of course, the Office Memorandums cannot be inconsistent with the 1973 Act itself nor (ipso facto) the Constitution. But any such objection to them operates on a plane higher than their position vis- -vis rules such as the APT Rules."

17. In light of the cited case law, it is well established that the legal foundation of Office Memorandums is rooted in the parent act governing civil servants. In this context, Office Memorandums and the rules framed under the parent statute are manifestations of the same delegated powers conferred by the parent statute. Therefore, it can be safely concluded that the Office Memorandums and instructions, as reproduced in para. 14, carry binding legal effect, and any deviation from them would have the same legal consequences as a violation of the rules or the parent act.

18. The issue of appointments on higher posts came before the apex Court on several occasion and it has been categorically ruled that appointment on higher posts has no backing of law and it amounts to offending the valuable rights of the meritorious and senior civil servants. The apex Court in Province of Sindh and others v. Ghulam Fareed and others (2014 SCMR 1189) , while dealing with a case under the Sindh Civil Servants Act, 1973, which contains pari materia provisions those contained in 1973 Act, the Supreme Court stated:

"We have inquired from the learned Additional Advocate General to show us any provision of law and or rule under which a civil servant can be appointed on higher grade/post on OPS basis. He concedes that there is no specific provision in the law or rule which permits appointment on OPS basis. He, however, submitted that in exigencies, the Government makes such appointments as a stop-gap arrangement. We have examined the provisions of Sindh Civil Servants Act and the Rules framed thereunder. We do not find any provision which could authorize the Government or Competent Authority to appoint any officer on a higher grade on "Own Pay And Scale Basis." Appointment of the nature that, too, of a junior officer causes heart burning of the senior officers within the cadre and or department. This practice of appointment on OPS basis to a higher grade has always been discouraged by this Court, as it does not have any sanction of law, besides it impinges the self-respect and dignity of the civil servants who are forced to work under their rapidly and unduly appointed fellow officers junior to them. Discretion of the nature, if allowed to be vested in the Competent Authority, will offend valuable rights of the meritorious civil servants besides blocking promotions of the deserving officers."

19. Similarly, the Supreme Court of Pakistan in Khan Muhammad v. Chief Secretary, Government of Balochistan and others (2018 SCMR 1411 ), reaffirmed the principle that posting and transfers of civil servants on Own Pay Scale basis is legally not permissible and stated:

"20. The issues raised in this petition are substantial questions of law of public importance in terms of Article 212(3) of the Constitution, which we have dilated upon and which were left unattended by the learned chairman and members of the Tribunal. The Tribunal also did not take into account the referred to judgments of this Court. The Tribunal referred to a judgment of this Court, Zaka Ullah Bajwa v. Chief Secretary, Government of the Punjab (2005 SCMR 13), which held that a civil servant, is required to serve anywhere against the post to which he is transferred", however, that does not mean a civil servant can be made to serve under his subordinate or for a very brief period of time or that the minister can undermine the authority of the secretary of the department."

20. On the point of appointment on acting charge basis, the Supreme Court in Bashir Ahmed Badini, D&SJ, Dera Allah Yar and others v. Hon'ble Chairman and Members of Administration Committee and Promotion Committee of Hon'ble High Court of Balochistan and others (2022 SCMR 448) , held:

"In the case of Tariq Aziz-ud-Din and others: (in re: Human Rights Cases Nos. 8340,9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009) (2010 SCMR 1301), this Court held that in case where the 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. It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxtaposition to isolate the meritorious amongst them. Expression 'merit' includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power [Director Food, N.W.F.P v. Messrs Madina Flour and General Mills (Pvt.) Ltd. (PLD 2001 SC 1)."

21. In Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195) , also known as Anita Turab case, the Supreme Court formulated certain principles to be observed while dealing with the transfers, postings, and promotions of civil servants and stated:

"22. The principles of law enunciated hereinabove can be summarized as under:--

(i) Appointments, Removals and Promotions: Appointments, removals and promotions must be made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest.

(ii) Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.

(iii) Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rule based norms; instead, in such situations, they must record their opinion and, if necessary, dissent.

(iv) OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.

23. We are fully conscious that the aforesaid matters relate to decision making and administration of the machinery of the State. As such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the State which comprises of both the political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility. However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion."

22. In light of the aforementioned case law, it is well-established that the practice of appointing civil servants on higher posts, whether on acting charge basis or Own Pay and Scale (OPS) basis, lacks any legal or constitutional backing. The superior courts have consistently emphasized that such appointments violate the principles of merit, seniority, and the rights of deserving officers within the service. The Supreme Court has unequivocally held that appointments to higher posts must be made strictly in accordance with the law and the prescribed rules, ensuring transparency, rationality, and adherence to merit. Discretion in this regard must be structured, reasonable, and exercised within the confines of legal provisions, as arbitrary actions undermine the integrity of the service and the self-respect of civil servants. Consequently, any deviation from the mandated procedures is deemed illegal and cannot be validated unless explicitly authorized by law.

23. It is an admitted position that respondents Nos. 5 to 11 were posted to higher positions. However, the argument presented in the comments submitted by respondents Nos. 1 to 3 is that these postings were made in accordance with Section 10 of the 1973 Act. While it is true that Section 10 of the 1973 Act stipulates that a civil servant is required to serve anywhere against the post to which they are transferred, this does not mean that authorities can appoint or transfer junior civil servants to higher positions in violation of merit. Therefore, we are not persuaded by the plea raised in the written comments, nor by the oral submissions made by the learned AAG. Appointing civil servants to higher positions without fulfilling the prescribed criteria not only violates the directives issued by superior courts in various binding judgments but also undermines the Government's own instructions issued from time to time in this regard.

24. Under the APT Rules, appointments on an acting charge basis are governed exclusively by Rule 9, which prescribes specific criteria that must be fulfilled to ensure compliance with the law. Acting charge appointments can only be made in the public interest for posts reserved for departmental promotion, provided the most senior civil servant in the relevant cadre or service, who is otherwise eligible, falls short of the specified length of service by no more than three years. For posts in Basic Pay Scale 17 and above, reserved for initial recruitment, such appointments may be made for the most senior eligible officer within the organization, cadre, or service, if no suitable officer exists in the relevant pay scale and the appointment is necessary to meet organizational needs. Moreover, acting charge appointments must be for vacancies expected to last six months or more and require the recommendation of the Departmental Promotion Committee or the Provincial Selection Board, as applicable. Importantly, such appointments do not confer any vested right to regular promotion to the post. Any practice of appointing or posting junior civil servants to higher grades or on an "Own Pay Scale" basis falls outside the framework of Rule 9, is entirely alien to the law, and lacks any legal foundation.

25. "Good governance forms the cornerstone of development, prosperity, and peace." as stated by Kofi Anaan Former UN Secretary General It provides every individual-irrespective of age or gender-a meaningful and enduring stake in shaping their society's political, economic, and social future. With such an inclusive foundation, the collective potential of a nation becomes boundless. In Tariq Aziz-ud-Din and others (In re: Human Rights Case Nos. 8340,9504-G, 13936-G. 13635-P and 14306-G to 143309-G of 2009) (2010 SCMR 1301) , the Supreme Court underscored that effective governance relies heavily on a principled, honest, and competent bureaucracy. A transparent and merit-based process for promotions, postings, and transfers is critical to ensuring administrative integrity, aligning with constitutional principles. Any deviation, such as favoritism or nepotism, undermines institutions, erodes trust, and jeopardizes the rule of law. In Anita Turab case , the Court emphasized the significance of tenure, appointments, and promotions in maintaining the independence of the civil service. Breaches of rules, coupled with the suppression of merit through favoritism or undue influence, compromise the civil service's impartiality and credibility. Thus, such practices not only foster dissatisfaction among civil servants but also carry grave implications for governance. Upholding merit as the central criterion in all processes is indispensable for achieving good governance and ensuring a just and equitable system.

26. In view of the above, this petition is disposed with the declarations and directives as follow:

1. It is declared that appointment of civil servants in higher posts is alien to law. It violates Articles 4 and 25 of the Constitution, Rule 9 of the APT Rules and instructions/directives dated 20.08.1979, 14.9.1985, 25.02.1986, 19.11.1987, 10.05.1997, 23.05.1988, and 13.2.1993.

2. On becoming of a post vacant, it should be filled in accordance with the procedure prescribed under the relevant service or recruitment rules. If immediate appointment is not possible, interim acting or current charge appointments may be made, strictly following the criteria provided under rule 9 of the APT Rules.

3. A civil servant cannot be appointed to a higher grade on an OPS basis, except under the provisions of Rule 9, which allows acting charge appointments in exigencies, subject to the conditions outlined in the APT Rules.

4. The Chief Secretary must ensure that no such postings of civil servants to higher posts are made in the future. If, in exigencies, any such postings are necessary, they must be carried out in accordance with the relevant laws, rules, and instructions, and not otherwise.

MH/1/P Order accordingly.

1 Halsbury's Laws of India, First Edn., Vol. 22, para 245.001, p. 580.

2 https://defirtitions.uslegalcornNlocus-standi/

3 Halsbury's Laws of India, First Edn., Vol. 35, p. 145.

4 Halsbury's Laws of England (Third Edition), Volume 11, p. 145.

5 American Jurisprudence (Second Edition), Volume 16, p. 578.