NAZEER AHMED DHOON vs GOVERNMENT OF SINDH and others
This matter concerns a petition for leave to appeal against a High Court judgment that dismissed a challenge to the appointment of Assistant Commissioners in the Province of Sindh. The petitioner challenged the direct appointment of certain respondents without routing them through the Sindh Public Service Commission (SPSC) and the promotion of others against reserved direct recruitment quotas. The High Court had upheld these appointments, citing Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990, which empowers the Chief Minister to exclude specific posts from the Commission's purview in the public interest. The petitioner argued that such direct induction was unlawful. The Supreme Court, noting that leave had already been granted in similar pending cases to determine whether such controversies fall within the High Court's constitutional jurisdiction or the exclusive jurisdiction of the Service Tribunal, granted leave to appeal. The Court specifically limited the scope of the appeal to the legality of the direct induction of respondents who bypassed the SPSC process, ordering the case to be heard alongside connected appeals.
- Does the Chief Minister have the authority under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 to exclude posts from the purview of the Public Service Commission?
- Can the High Court exercise constitutional jurisdiction over service matters involving the appointment of civil servants, or does such jurisdiction lie exclusively with the Service Tribunal?
- Is the direct induction of civil servants through a Selection Board, bypassing the Sindh Public Service Commission, lawful under the Sindh Public Service Commission (Functions) Rules, 1990?
- Rule 5, Sindh Public Service Commission (Functions) Rules 1990
- Rule 3(3), Sindh Public Service Commission (Functions) Rules 1990
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 SPSC, 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 Nos.29 to 52 as above should have been filled through S.P:S.C., did not find favour is 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 abovesaid 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 where under 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 respondents 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 S.P.S.C. Could not be treated as lawful with the subsequent direction to them to appear before the Commission for assessm ent of their suitability under sub-rule (3) of Rule 3 of Sindh Public Service Commission (Functions) Rules, 1990. 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 1977) 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 the 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 with 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.