 
IN THE SUPREME COURT OF PAKISTAN 
( Review Jurisdiction ) 
 
 
PRESENT: 
 
 
 
 
MR. JUSTICE NASIR-UL-MULK, HCJ. 
 
 
 
 
MR. JUSTICE AMIR HANI MUSLIM 
 
 
 
 
MR. JUSTICE IJAZ AHMED CHAUDHRY 
 
CIVIL REVIEW PETITION NO.193 OF 2013 ETC 
 
C.R.P. No.193/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011)  
Ali Azhar Khan Baloch 
 
Vs. Province of Sindh etc 
 
 
C.R.P. No.194/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011)  
S. M. Kaleem Makki 
 
Vs. Dr. Nasimul Ghani Sahito 
 
 
C.R.P. No.199/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011)  
Province of Sindh etc 
 
Vs. Farooq Azam Memon and others  
 
 
C.R.P. No.203/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011)  
S. M. Kaleem Makki 
 
Vs. Farooq Azam Memon 
 
 
C.R.P. No.204/2013 IN S.M.R.P. NO.239/2013 IN CONST.P.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Syed Abid Ali Shah  
 
Vs. Farooq Azam Memon and others  
 
 
C.M.A. No.6628/2013 IN S.M.R.P.239/2013 IN CA.12-K/2012 
(On review against judgment 12.6.2013 passed by this  
Court in Appeal No.12-K/2012) 
Shiraz Asghar Shaikh 
 
Vs. 
Dr. Nasimul Ghani Sahito and 
others  
 
 
C.R.P. No.392/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Imdad Ali Solangi and others   
 
Vs. 
Province of Sindh and others  
 
 
 
C.R.P. NO.388/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Ghulam Mustafa Zardari 
Vs. 
Province of Sindh and others  
CRP.No.193/2013 etc 
2 
 
 
C.R.P. No.393/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Mujeeb-ur-Rehman Shaikh 
 
 
Vs. 
Province of Sindh and others  
 
 
CMA. No.4568/2013 in CRP No.NIL/2013 in CA.98-K/2010 
(On review against judgment 12.6.2013 passed by this  
Court in Crl. O.P.89/2011) 
Rafique Ahmed Abbasi 
 
Vs. 
Chief Secretary, Govt. of Sindh 
and others  
 
 
C.R.P. NO.387/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Imdad Memon and others  
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.410/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Jasoo Ram 
 
Vs. 
Nasimul Ghani Sahito and others  
 
 
C.R.P. NO.391/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Nisar Ahmed Brohi 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.389/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Hameedullah 
Vs.  
 
Province of Sindh and others  
 
 
C.R.P. NO.394/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Muhammad Rafique Qureshi 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. NO.409/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Mukhtiar Ali and others  
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.390/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Saifullah Phulphoto 
Vs. 
Province of Sindh and others  
 
 
 
C.R.P. No.396/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Dost Ali Balouch 
 
Vs. 
Province of Sindh and others 
 
CRP.No.193/2013 etc 
3 
 
C.R.P. No.397/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Manzoor Ahmed Sheikh and 
another  
 
Vs. 
Province of Sindh and others  
 
 
 
C.R.P. No.407/2013 IN CIVIL APPEAL NO.12-K/2012 
(On review against judgment 12.6.2013 passed by this  
Court in Civil Appeal No.12-K/2012) 
Shahid Hussain Mahessar 
 
Vs. 
Province of Sindh thr. Chief Secy. 
and others  
 
 
C.R.P. No.398/2013 IN CIVIL APPEAL NO.12-K/2012 
(On review against judgment 12.6.2013 passed by this  
Court in Civil Appeal No.12-K/2012) 
Muhammad Riaz and another  
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.408/2013 IN CIVIL APPEAL NO.12-K/2012 
(On review against judgment 12.6.2013 passed by this  
Court in Civil Appeal No.12-K/2012) 
Muhammad Rizwan Soomro 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.411/2013 IN CIVIL APPEAL NO.12-K/2012 
(On review against judgment 12.6.2013 passed by this  
Court in Civil Appeal No.12-K/2012) 
Zameer Ahmed 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.399/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Imran Hussain Jafri 
 
Vs. 
Farooq Azam Memon and others  
 
 
C.R.P. No.400/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Syed Ahmed Sheikh & another 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P.NO.401/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Gul Hassan Zardari  
 
Vs. 
Province of Sindh and others 
 
  
C.R.P. NO.402/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Shamsuddin Shaikh 
 
Vs. 
Province of Sindh and others  
 
 
C.R.P. No.403/2013 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Nisamuddin Shaikh 
 
Vs. 
Province of Sindh and others  
 
CRP.No.193/2013 etc 
4 
 
C.R.P. No.125/2014 IN CONST. PETITION NO.71/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Const. Petition No.71/2011) 
Dr. Atta Muhammad Panhwar 
 
Vs. 
Province of Sindh and others  
 
 
CRL.R.P. No.70/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Yar Muhammad Bozdar 
 
Vs. 
Province of Sindh and others  
 
 
CRL.R.P. No.71/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Muhammad Jaffar Abbasi 
 
Vs. 
Province of Sindh and others  
 
 
CRL.R.P. No.72/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Syed Altaf Ali and others  
 
Vs. 
Chief Secretary Sindh and others 
 
  
CRL.R.P. No.73/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Nizamuddin and others  
 
 
 
Vs. 
Province of Sindh thr. Chief Secy. 
Sindh and others  
 
CRL.R.P. No.74/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Ghulam Nabi Babar Jamali 
and another  
 
Vs. 
Chief Secretary Sindh, etc 
 
 
 
CRL.R.P. No.75/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Ghulam Hussain Korai 
 
Vs. 
Province of Sindh etc 
 
 
CRL.R.P. No.76/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Hafiz Safdar Shaikh 
 
Vs. 
Javed Ahmed and others  
 
 
CRL.R.P.NO.77/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Talib Magsi 
 
Vs. 
Province of Sindh thr. Chief 
Secretary and others  
 
CRL.R.P. No.78/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Dur Muhammad Panhawar 
 
Vs. 
Province of Sindh, etc 
 
CRP.No.193/2013 etc 
5 
 
CRL.R.P. No.79/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Syed Shakir Hussain Shah 
 
Vs. 
Province of Sindh thr. its Chief 
Secy. and others  
 
 
CRL.R.P. No.80/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Mirza Shahbaz Mughal 
 
Vs. 
Province of Sindh and others  
 
 
CRL.R.P. No.81/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Tariq Mughal  
 
Vs. 
Chief Secy. Govt. of Sindh 
 
 
CRL.R.P. No.82/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
M. Hanif Solangi 
 
Vs. 
Chief Secy. Govt. of Sindh 
 
 
CRL.R.P. No.83/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Inayatullah Qureshi 
 
Vs. 
Province of Sindh and others  
 
 
CRL.R.P. No.84/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Khurram Waris 
 
Vs. 
Chief Secretary Sindh 
 
 
CRL.M.A. No.860/2013 IN CRL.R.P.NIL/2013 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Mir Hussain Ahmed Lehri 
 
Vs. 
Javed Ahmed and others  
 
 
CRL.R.P. No.39/2014 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Munir Ahmed Phulphoto 
 
Vs. 
Province of Sindh 
 
 
CRL.R.P. No.40/2014 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Atta Muhammad Memon 
 
Vs. 
The Chief Secy. Govt. of Sindh 
 
 
C.R.P. No.412/2013 IN CMA.310-K/2012 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Qamaruddin Shaikh  
 
Vs. 
Secy. Local Govt. and others 
 
 
CRP.No.193/2013 etc 
6 
CRL.R.P. No.38/2014 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Mrs.Asma Shahid Siddiqui 
 
Vs. 
Chief Secy. Province of Sindh 
 
 
CRL.R.P. No.41/2014 IN CRL.O.P.89/2011 
(On review against judgment 12.6.2013 passed by this  
Court in Crl.O.P.89/2011) 
Ali Murad Abro 
 
Vs. 
The Chief Secretary, Govt. of 
Sindh  
 
 
CIVIL PETITION NO.968/2014 
(On appeal against the judgment dated 13.5.2014 passed by the High  
Court of Sindh, Circuit Larkana in CP.D-538/2014) 
Saleem Ullah 
 
Vs. 
Province of Sindh, thr. Chief Secy. 
and others  
 
 
 
ATTENDANCE  
 
For the Petitioner(s)/Appellant(s) 
 
(CRP.199/2013) 
: 
Sarwar Khan Add. A.G Sindh 
Abdul Fateh Malik A.G. Sindh 
Rafique Mustafa Shaikh Add. Secretary 
Services(S&GAD) 
Ghulam Ali Bharmani Dy. Secretary 
Services(S&GAD) 
 
(CRP.203/2013) 
  
 
: 
Mr. Shabbir Ahmed Awan ASC 
(CRP.392/2013) 
 
: 
Syed Iftikhar Hussain Gillani Sr. ASC 
(Crl.RP.72/2013). 
 
: 
Syed Ali Zafar ASC 
(CRP.388, 391, 389, 390, 
397/2013, & Crl.RP 
73/2013 
 
: 
Raja Muhammad Ibrahim Satti Sr. ASC 
 
Crl.RPs. 70 & 71/2013. 
CP.968/2014 
 
: 
Mr. Tariq Mehmood Sr. ASC 
C.R.P. 194/2013. 
 
: 
Raja Muhammad Asghar Khan ASC 
 
 
C.R.P. 204/2013. 
: 
Shabbir Ahmed Awan ASC appeared 
and submitted written arguments on 
behalf of Mr. Ibadul Hasanin ASC  
 
C.R.P. 393/2013. 
C.R.Ps.407 & 408/2013 
CRP.400, 411/2013 
 
: 
Mr. Abdul Rahim Bhatti ASC 
C.M.A.4568/2013 in CRP 
Nil/13 in C.A. 98-K/2010. 
Crl.R.P.38/2014 
Crl.R.P.75/2013 
CRP.401/2013 
Crl.R.P.40 & 41/2014 
: 
In Person 
CRP.No.193/2013 etc 
7 
 
C.R.P. 387/2013. 
 
: 
Mr. Hamid Khan Sr.ASC 
C.R.P. 193/2013. 
CRP.396/2013 
CRP.125/2014 
 
: 
Dr. Farough Naseem, ASC 
C.R.P. 409/2013  
For petitioner 1-3 
Crl.O.P.121/2013 
Crl.M.A.760/2013 in 
Crl.O.P.89/2011 
 
: 
Mr. M.Aqil Awan, Sr. ASC 
 
 
C.R.P.409/2013 
For petitioner 4-8  
CRP.394/2013 
 
: 
Baz Muhammad Kakar, ASC 
 
C.R.P.399/2013 
Crl.R.P.76/2013 
Crl.R.P.83/2013 
Crl.M.A.860/2013 in 
Crl.R.P.Nil/2013 in 
Crlo.O.89/2011 
 
: 
Mr. Shabbir Ahmed Awan, ASC 
C.R.P.410/2013 
 
: 
Mr. Abdur Rehman Siddiqui, ASC 
CRP.398/2013 
CRP.412/2013 
 
: 
Mr. M. Shoaib Shaheen, ASC 
CRPs.402, 403/2013 
 
: 
Mr. Khurram Mumtaz Hashmi, ASC 
Crl.R.P.74/2013, 
 
: 
Mr. Adnan Iqbal Ch. ASC 
Crl.R.P.77/2013 
 
: 
Mr. Yawar Farooqui, ASC 
Crl.R.P.79/2013 
 
: 
Rana Azam-ul-Hassan, ASC 
Crl.R.P.80/2013 
 
: 
Mr. Abid S. Zuberi, ASC 
Crl.R.P.78/2013 
Crl.R.P.84/2013 
 
: 
Mr. Irfan Qadir, ASC 
Crl.R.Ps.81&82/2013 
 
: 
Mr. M. Munir Paracha, ASC 
CMA.6628/2013 in 
SMRP.239/2013 
 
: 
Mr. Anwar Mansoor Khan, Sr. ASC 
Crl.M.A.460/2013 in 
Crl.O.P.89/2011 
 
: 
Nemo. 
Crl.O.P.103/2013 
 
: 
Mian Abdul Rauf, ASC 
Crl.R.P.39/2014 
 
 
 
: 
Mr. Z. K. Jatoi, ASC 
For respondent(s) 
 
 
For Govt. of Sindh. 
: Sarwar Khan Add. A.G Sindh 
Abdul Fateh Malik A.G. Sindh 
Rafique Mustafa Shaikh,  
Add. Secretary Services(S&GAD) 
Ghulam Ali Bharmani,  
Dy. Secretary Services(S&GAD) 
CRP.No.193/2013 etc 
8 
 
 
Date of hearings  
: 5th, 6th, 10th June, 2014,  
15th to 17th & 21st to 24th October, 2014. 
 
 
 
 
 
 
 
JUDGMENT 
 
 
AMIR HANI MUSLIM, J.- 
CRP No. 199/2013 
 
 
Province of Sindh etc vs. Farooq Azam Memon 
 
 
by Mr. Sarwar Khan, Addl. AG Sindh 
 
 
 
 
The Additional Advocate General Sindh has contended 
that Constitutional Petitions No.71/2011, 21, 23 and 24/2013, 
filed by the Petitioners under Article 184(3) of the Constitution, 
challenging the vires of the six impugned legislative instruments 
were not competent. According to him, the issues raised in these 
Petitions were not of public importance. He contended that 
individual grievances of 30 Civil Servants relatable to the terms 
and conditions of service fall outside the purview of Article 184(3) 
of the Constitution. He contended that in such cases this Court, 
time and again, has declined to entertain such Petitions. While 
relying upon the case of Ishtiaq Ahmed Sheikh and others v. M/s 
UBL and others (PLD 2006 SC 94), the learned Addl. Advocate 
General 
has 
contended 
that 
Article 
184(3) 
has 
excluded 
adjudication of service matters. He next contended that the 
Petitioners could have approached the Sindh Service Tribunal for 
redressal of their grievances, which was equally competent to 
examine the vires of the legislative instruments.  
2.  
 
He further contended that the Petitioners have failed to 
establish 
that 
their 
fundamental 
rights 
were 
violated 
by 
promulgation of the impugned legislative instruments, to give 
CRP.No.193/2013 etc 
9 
cause to them to invoke jurisdiction of this Court under Article 
184(3). In support of his contentions, he has relied upon the 
judgments in the cases of All Pakistan Newspapers Society (APNS) 
etc v. Federation of Pakistan and others (PLD 2004 SC 600) and 
Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and 
others (2012 SCMR 455).  
3. 
 
He next contended that the judgment under review 
has made Rule 9(1) of the Sindh Civil Servants (Appointment, 
Promotion and Transfer) Rules, 1974 redundant, as the powers 
exercised by the competent authority under the said rule have 
been done away with. He contended that the principles enunciated 
by the impugned judgment were applied retrospectively. According 
to the learned Addl. Advocate General, if the law is declared ultra 
vires of the Constitution, the effect of such declaration would 
operate prospectively. In support of this contention, he has relied 
upon the cases of Muhammad Younis and others v. Essa Jan and 
others (2009 SCMR 1169) and Mazhar Ali vs. Federation of 
Pakistan/President of Pakistan thr. the Secretary Establishment 
Division, and others (1992 SCMR 435). He further contended that 
the Officers/employees serving in different departments of the 
Sindh Government for years together, were ordered to be 
repatriated to their Parent Departments, after the termination of 
their lien by lapse of time. The learned Addl. AG contended that 
the impugned judgment has attributed mala fides to the 
legislature, which finding is against the settled principles of law. 
He has relied upon the judgment in the case of Fauji Foundation 
and another vs. Shamimur Rehman (PLD 1983 SC 457) and prayed 
that the review be allowed on the aforesaid grounds.  
 
CRP.No.193/2013 etc 
10 
CRP No. 388,389,390,391,397 of 2013 & Crl.R.P 73/2013 
 
 
By Raja M. Ibrahim Satti, Sr. ASC 
 
(CRP.388/2013)      
Ghulam Mustafa Zardari v. Province of Sindh etc 
(CRP.389/2013) 
Hameedullah v. Province of Sindh and others  
(CRP.390/2013) 
Saifullah Phulpoto v. Province of Sindh etc 
(CRP.391/2013) 
Nisar Ahmed Brohi v. Province of Sindh and others  
(CRP.397/2013) 
Manzoor Ahmed Sheikh etc v. Province of Sindh and others  
(Crl.R.P.73/2013) 
Nizamuddin and others v. Province of Sindh thr. its Chief  
 
 
 
Secretary Sindh and others  
 
4  
 
Raja M. Ibrahim Satti, learned Counsel for Petitioner(s) 
has contended that this Court has examined the vires of legislative 
instruments while interpreting the Articles of the Constitution 
without issuing notices to the Attorney General for Pakistan in 
terms of Order XXVII-A Rule 1 CPC, therefore, the impugned 
judgment is not sustainable. In support of his contention he has 
relied upon the case of Federation of Pakistan thr. Secy, M/o of 
Law etc v. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). He next 
contended that the Petition was not maintainable under Article 
184(3) of the Constitution as the Petitioners were seeking redressal 
of their individual grievances and were not seeking enforcement of 
their fundamental rights.  
5.  
 
It was next contended by the learned Counsel that 
mala fides could not be attributed to the Provincial Legislature, 
which has passed the legislative instruments, in exercise of the 
powers guaranteed by the Constitution. According to the learned 
Counsel, the Provincial Legislature was competent to legislate law, 
which is their divine right, therefore, the legislative instruments 
were wrongly struck down. He in support of his contentions has 
relied upon the case of Imran ullah v. the Crown (PLD 1954 Federal 
Court 123).  
6.  
 
He further contended that in compliance with the 
impugned judgment, the Sindh Chief Secretary has issued 
CRP.No.193/2013 etc 
11 
notification 
repatriating 
the 
Petitioners 
to 
their 
parent 
Departments, without affording them the right of audience. The 
learned Counsel further argued that the issue of ‘absorption’ of the 
Petitioners was a past and closed transaction; and by the 
impugned judgment this Honorable Court has erroneously undone 
absorption of the Petitioners by ordering their repatriation 
retrospectively.  
 
Crl.R.P. No. 72/2013  
Syed Altaf Ali and others vs. Chief Secretary Sindh etc 
by Syed Ali Zafar, ASC 
 
7.  
 
Syed Ali Zafar, Counsel for the Petitioners, has 
contended that this Honorable Court has wrongly entertained the 
issue of appointment of the Petitioners by nomination in excess of 
the prescribed quota in exercise of its original jurisdiction under 
Article 184(3) of the Constitution. According to the learned Counsel 
such an issue could only be adjudicated upon by this Court under 
Article 212(3) of the Constitution, which Article deals with the 
service matters.  
8.  
 
He next contended that the Court ought to have 
decided the issue on merits and not on the basis of the list 
provided by the Sindh Government. The Counsel referred to Rule 
5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964, which 
provides for promotion of various categories of Civil Servants by 
nomination. He submitted that if the appointments of the 
Petitioners by nomination are held to be illegal then all 
appointments made under Rule 5(4)(b) should be declared illegal 
and not just those nominated since 1994. He submitted that the 
aforesaid rule provides for preparation of lists B and C but no such 
CRP.No.193/2013 etc 
12 
lists were maintained by the Sindh Government for the nomination 
of the Petitioners as a consequence whereof they did not have the 
opportunity to challenge it. He submitted that a cut-off date should 
have been determined by the Sindh Government for examining the 
appointments made in excess of the quota. Lastly, the learned 
Counsel contended that departmental construction of a statute, 
though not binding, can be taken into consideration, especially 
when it was followed by the department consistently. In support of 
his contention he has relied upon the case of Muhammad Nadeem 
Arif and another v.  Inspector-General of Police, Punjab, Lahore and 
others (2011 SCMR 408). 
 
Crl.RP No. 70/2013 
Yar Muhammad Bozdar vs. Province of Sindh etc   
by Mr. Tariq Mahmood, Sr. ASC 
 
9.  
 
Mr. Tariq Mehmood, learned Sr. ASC submitted that 
the Petitioner was a Superintendent in Board of Revenue, 
Government of Sindh. The recommendation for his appointment 
was made by the Member, Board of Revenue, Sindh in terms of 
Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964. 
A list was prepared in 2005 and the Petitioner was recommended 
for nomination, therefore, his case falls within the prescribed limit 
of the quota. It was further submitted by the learned Counsel that 
the Petitioner passed many departmental examinations which were 
not taken note of by this Court while passing the impugned 
judgment against the Petitioner. 
Crl. R.P. No. 71/2013  
Muhammad Jaffar Abbasi v. Province of Sindh and others  
by Mr. Tariq Mahmood, Sr. ASC 
 
10.   
Mr. Tariq Mehmood, the Counsel for Petitioner, 
submitted that the Petitioner was appointed as Deputy Secretary, 
CRP.No.193/2013 etc 
13 
Sindh Public Service Commission through competitive process. On 
30.03.1995, the post was upgraded to BS-18. On 01.09.1999, the 
Petitioner was transferred to S & GAD and absorbed in the 
Provincial Secretariat Service. The notification of his absorption 
was cancelled. The Petitioner challenged the cancellation of the 
notification before the Sindh Service Tribunal. The Tribunal 
accepted his Appeal against which Sindh Government filed CPLA 
before this Honorable Court. The CPLA, however, was dismissed 
for non-prosecution and the application for restoration of the CPLA 
was also dismissed. Resultantly, the order of the Tribunal attained 
finality. However, the absorption of the Petitioner has again been 
cancelled, pursuant to the impugned judgment without taking note 
of the aforesaid facts.  
11.   
He next contended that before absorption, the 
Petitioner was a Civil Servant working in the Sindh Public Service 
Commission, which is an attached department of the S & GAD 
Department, and therefore, such absorption could not have been 
withdrawn in terms of the findings of the impugned judgment.  
 
CRP No. 194/2013 
S.M. Kaleem Makki vs. Dr. Nasimul Ghani Sahito 
by Raja M. Asghar Khan, ASC 
 
12.   
The learned Counsel, Raja M. Asghar Khan submitted 
that in the year 1993, the Petitioner was appointed as Project 
Director in BS-19 in the Sindh Small Industries Corporation 
through advertisement. Subsequently, by notification dated 
22.06.2000, he was declared surplus. On 30.09.2005, he was 
absorbed in Provincial Secretariat Service (PSS) under Rule 9A of 
the Sindh Civil Servants (Appointment, Promotion and Transfer) 
CRP.No.193/2013 etc 
14 
Rules, 1973. The learned Counsel contended that the absorption of 
the Petitioner in P.S.S. in the same scale was made after observing 
all the codal formalities; therefore, his appointment by absorption 
was valid.  
 
CRP No. 204/2013 
Syed Abid Ali Shah (Retired) vs. Farooq Azam Memon etc 
by Mr. Abadul Hussnain, ASC  
 
13.   
The learned Counsel submitted that in 1976 the 
Petitioner was appointed as Management Trainee in the Board of 
Management, 
Sindh 
for 
nationalized 
Ghee 
Industries. 
On 
16.8.1997, he was appointed Managing Director at Maqbool Co. 
Ltd. when the Sindh Government requisitioned his services. On 
24.10.1997, the Petitioner was sent on deputation for 3 years to 
the Ministry of Industries and Production. On 15.11.1997, he was 
appointed Cane Commissioner in BS-19. Then on 05.04.1998, he 
was transferred as DG, Bureau of Supply and Prices, Sindh. 
Subsequently, on 15.11.1998, he was repatriated to Ghee Corp. 
and on 14.01.1999, his services were placed at the disposal of 
Population Welfare Department (PWD). On 18.01.1999, he was 
appointed as Additional Secretary, PWD, and on 09.08.1999, he 
was absorbed in PWD in relaxation of rules. Then, on 30.09.1999, 
Ghee Corp. relieved him but on 18.12.1999, the Government 
issued a notification for repatriation of the Petitioner. However, on 
21.12.1999, the Secretary of Sindh Government informed that the 
Petitioner has been absorbed, therefore, he cannot be repatriated. 
By notification, dated 18.1.2013, the Petitioner was absorbed in 
PSS. 
CRP.No.193/2013 etc 
15 
14.   
The learned Counsel contended that, in pursuance of 
the impugned judgment, he was de-notified on 02.07.2013 and 
repatriated to Ghee Corporation though he had been merged in 
Sindh Government in PSS cadre and Ghee Corporation had 
become defunct. The Appellant retired on attaining the age of 
superannuation, on 01.06.2014, one year after de-notification. 
 
CRP No. 393/2013  
Mujeeb-ur-Rehman Shaikh vs. Province of Sindh 
by Mr. Abdul Rahim Bhatti, ASC 
 
15.   
Mr. Abdul Rahim Bhatti, the learned ASC, contended 
that the Petitioner was initially appointed as Assistant Director in 
Agriculture Department in BS-17 in 1989 through Sindh Public 
Service Commission. Later, his services were requisitioned by the 
Environment Department, Government of Sindh for a period of two 
years in the public interest. A summary was moved for his transfer 
and, consequently, he was appointed in the Environment 
Department. On 13.10.2005, he was promoted as Deputy Director 
in BS-18 through Provincial Selection Board and was granted 
seniority. The Petitioner was not a party to the proceedings either 
in the High Court of Sindh or before this Court. He was repatriated 
to his parent department without considering that the Petitioner 
fulfilled all pre-requisites of his appointment in the Environment 
Department, as provided under Rule 9(1) of the Rules of 1974. The 
learned Counsel submitted that Petitioner was validly appointed by 
transfer under Rule 9(1), and not under Rule 9-A.  
16.   
He further contended that the word ‘person’ used in 
Rule 9(1), clearly manifests the intention of the legislature that 
there is no bar to the appointment of the Petitioner by transfer 
CRP.No.193/2013 etc 
16 
under the A.P.T. Rules and in the other three Provinces and the 
Federation such transfers are ordered in routine. He next argued 
that the expression ‘person’ used in the Rule 9(1) does not mean 
Civil Servant only and includes a ‘Government Servant’, who may 
not be a Civil Servant.  
 
CRP No. 387/2013 in Const.P.71/2011 
Imdad Memon and others vs. Province of Sindh and others  
by Mr. Hamid Khan, Sr. ASC 
 
17.   
Mr. Hamid Khan, learned Counsel for the Petitioners, 
contended that none of the Petitioners was party to the 
proceedings; therefore, the Court could not have passed an order 
affecting their rights. He submitted that neither the High Court nor 
this Court (under Article 199 and Article 184(3) respectively) had 
the jurisdiction to examine the issue pertaining to the terms and 
conditions of service of a Civil Servant. The exercise of jurisdiction 
is barred under Article 212 of the Constitution. The issue of 
absorption is a matter relating to the terms and conditions of 
service, to be determined under the Civil Servants Act and the 
Rules framed thereunder. He submitted that a number of Petitions 
were filed by Civil Servants absorbed in the Secretariat Group in 
the High Court of Sindh, in ignorance of the fact that remedy was 
available to them before the Sindh Service Tribunal. Therefore, the 
Petitions were barred under Article 212 of the Constitution. The 
learned Counsel while relying upon the case reported in 
Superintending Engineer Highways Circle Multan vs. Muhammad 
Khurshid (2003 SCMR 1241), submitted that the matter of 
jurisdiction has not been dealt with in depth. He contended that 
Rule 9(1) and 9-A of the Sindh Civil Servants (Appointment, 
Promotion and Transfer) Rules, 1974 provide two modes of 
CRP.No.193/2013 etc 
17 
appointment by transfer and both these modes are recognized by 
law. 
18.   
The learned Counsel submitted that Articles 240, 241 
and 242 of the Constitution deal with the civil structure and Article 
212 provides remedy to a Civil Servant. These Articles do not relate 
to fundamental rights. It has to be assessed in light of the 
aforementioned 
Articles 
whether 
the 
Supreme 
Court 
can 
adjudicate upon the issue relatable to the terms and conditions of 
service under Article 184(3). The learned Counsel contended that 
the Court has to draw a distinction between Article 184(3) and 
Article 212 while giving the findings. He contended that Article 240 
empowers the Provincial Legislature to legislate laws relating to the 
terms and conditions of service of Civil Servants.  
19.   
He next contended that in order to invoke the 
jurisdiction of this Court under Article 184(3), the expression 
‘subject to the Constitution’ has to be given narrow meaning, as 
referred to in the Article 275. The learned Counsel submitted that 
Civil Servants do not have fundamental rights to invoke 
jurisdiction of this Court under Article 184(3) of the Constitution. 
According to the learned Counsel, benefit of Articles 9 and 25 of 
the Constitution cannot be extended to the Civil Servants.  
 
CRP No. 193/2013 
 
 
Ali Azhar Khan Baloch v. Province of Sindh etc  
by Barrister Farough Naseem, ASC 
 
20.   
The learned Counsel submitted that the Petitioner was 
employed as Deputy Manager at Pakistan Steel Mills (PSM), which 
works under the control of Ministry of Production. On 16.09.1992, 
upon the directive of the then Chief Minister, his services were 
CRP.No.193/2013 etc 
18 
placed at the disposal of the Government of Sindh. For two years, 
he performed duties at various departments in the Government of 
Sindh, e.g. on 6.03.1993, he was posted as Project Director, Lines 
Area, 
Redevelopment 
Project 
KDA 
in 
BS-18. 
Finally, 
on 
25.07.1994, permission was granted for his absorption by the 
Establishment Division into the Government of Sindh. On 
28.05.1994, the Petitioner was finally absorbed as Deputy 
Secretary in the Sindh Secretariat (PSS) and was placed at the 
bottom of the seniority list. His lien with the PSM was terminated 
in 1994. He earned promotions from time to time and finally he 
was promoted as Secretary (BS-21) in the Sindh Government, by 
Notification dated 28.9.2012. By notification dated 25.4.2013, 
issued by the Cabinet Secretariat, Establishment Division, 
Government of Pakistan, he was appointed by transfer as Senior 
Joint Secretary (BS-21) in Secretariat Group and his services were 
placed at the disposal of the Wafaqi Mohtasib for his further 
posting. He is now posted as Director General of the Wafaqi 
Muhtasib.  
21.   
The learned Counsel for the Petitioner contended that 
the cut off date for the application of the impugned decision was 
held as 1994, therefore, his case was not covered by the impugned 
judgment. The learned Counsel submitted that the cut off date of 
1994 is not backed by any standard. The date given in the 
litigation in 1996 (in which the Petitioner’s case was decided) 
would be more suitable, which is 22.03.1995. The Counsel 
contended that the date of 1994 seems to be arbitrarily fixed. The 
learned Counsel cited the case Province of Punjab thr. Secretary 
C&W Department and others  vs.  Ibrar Younas Butt (2004 SCMR 
67) in support of his submission.  
CRP.No.193/2013 etc 
19 
22.   
The learned Counsel then referred to Rule 5 of 
Framework of Rules and Procedure applicable to Secretariat, which 
provides that the appointment of Additional Secretary in the 
Federal Secretariat can be made from public servants or officials 
from public or private enterprises. The learned Counsel submitted 
that if there is such an option available in the Federation, why it 
should not be made available at the Provincial level. The Petitioner 
was an employee of PSM, which is a public enterprise. He further 
submitted that appointments cannot only be made through CSS 
examinations, citing the Police Service as an example. 
23.   
Alternatively, the Counsel argued that the Petitioner is 
qualified to be adjusted under Rule 5 and he should either be 
allowed to go to the High Court and this Honorable Court may 
observe that the impugned judgment will not come in his way or 
this Court may give necessary directions to the Department. 
24.   
The Counsel next contended that in pursuance of 
Services 
of 
Pakistan 
(Redressal 
of 
Under-Representation) 
Ordinance, 2012, on 01.12.2012, the Petitioner was appointed by 
transfer as Senior Joint Secretary in Secretariat Group in Federal 
Government on probation under section 6 of the Sindh Civil 
Servants Act, 1973. On 25.4.2013, the Petitioner was absorbed by 
the Federal Government and appointed at Wafaqi Muhtasib 
Secretariat. He submitted that the Federal Government realized 
that some Provinces were underrepresented, including Sindh and 
Balochistan. The Ordinance provided that officers could be taken 
from Provincial Civil Service and inducted under the Ordinance. 
Counsel submitted that the Petitioner’s appointment is valid as his 
CRP.No.193/2013 etc 
20 
services were placed in the Federal Government under the 
aforesaid Ordinance. 
25.   
He next contended that the notification for the 
Petitioner’s absorption was issued prior to the impugned judgment 
i.e on 12.06.2013. He submitted that if the judgment has to be 
implemented retrospectively, the Petitioner should be repatriated 
in PSM and granted backdated seniority.  
 
CMA No. 4663/2013 in CRP No. 409/2013 
Mukhtar Ali etc v. Province of Sindh etc 
by Mr. M. Aqil Awan, Sr.ASC 
 
26.   
The learned Counsel, appearing for three Petitioners, 
Mukhtar Ali Pholijo, Muhammad Saleem Jokhio and Abdul Rashid, 
submitted that the persons against whom this judgment is being 
applied were not Civil Servants either before or after their 
absorption; they were just transferred from one cadre to another. 
27.   
The 
Counsel 
submitted 
that 
Mukhtar 
Ali 
was 
appointed by Selection Board as a Medical Officer in BS-17 in 
Sindh 
Employee 
Social 
Security 
Institution 
(SESSI). 
By 
notification, dated 31.1.1996, he was absorbed in BS-17 in Sindh 
Council   Service, Medical Branch. Before the impugned judgment 
was passed, the Petitioner was Administrator in District Municipal 
Corporation, Malir in Executive Cadre. 
28.   
The second Petitioner, Muhammad Saleem, was an 
officer 
in 
City 
District 
Government 
Karachi 
in 
BS-18, 
Administrative cadre. The Counsel submitted that the Petitioner 
was employed in the same department but he was absorbed in 
another branch. The Counsel submitted that the services of the 
employees of KMC are regulated by the Sindh Local Government 
CRP.No.193/2013 etc 
21 
Ordinance 1979, whereas the services of the employees of the 
Councils are governed by the Sindh Councils Unified Grades 
Service Rules 1982.  
29.   
The third Petitioner Abdul Rashid was appointed as 
Assistant Director, KMC in BS 16 on 21.03.1996. On 12.4.2003, 
he was promoted to BS-17 and on 19.04.2007, he was 
subsequently promoted to BS-18. He was employed as an officer in 
City District Council; the nomenclature kept changing according to 
the prevalent laws but, basically, he was an employee of the 
Municipal Corporation. On 12.2.2013, the Petitioner was absorbed 
in Sindh Councils Service and promoted to BS-19 on 12.2.2013. 
30.   
The Counsel referred to Rule 12(5) of the Sindh 
Councils Unified Grade Service Rules, 1982, which provides for 
appointment by transfer. The learned Counsel contended that 
Mukhtar Ali’s appointment was not challenged but he had been 
repatriated to his parent office pursuant to the impugned 
judgment, which does not relate to non-Civil Servants per se. The 
impugned judgment was passed on 12.06.2013 and he was 
repatriated on 2.07.2013. The learned Counsel contended that 
since absorption has been declared illegal by the impugned 
judgment, the Petitioner, an officer of BS-19, has been repatriated 
to BS-17.  
31.   
The learned Counsel submitted that the impugned 
judgment of this Court has curtailed a prevalent practice, which is 
permissible under the law. The learned Counsel contended that 
this Court needs to lay down the modalities of implementation and 
application of the impugned judgment. The modalities regarding 
deputation and absorption and the process of repatriation after 
CRP.No.193/2013 etc 
22 
illegal absorption should also be laid down. He contended that if 
an officer has been wrongly absorbed, a show cause notice should 
be issued, the grounds of repatriation should be mentioned and 
speaking order should be passed, which is justiciable. 
32.   
The learned Counsel submitted that the impugned 
judgment does not apply to non-Civil Servants as they were not 
party to the original proceedings and no Counsel appeared on their 
behalf. He cited the cases of Fazal Ahmed Samito vs Province of 
Sindh (2010 PLC (CS) 215) and Zulfiqar Ali Domki vs Province of 
Sindh (2012 PLC (CS) 1176) and argued that KMC/Council 
employees are not Civil Servants. He further submitted that Rule 
12 (5) of the Rules permits appointment by transfer. 
33.   
The learned Counsel submitted that, firstly, the 
judgment should be prospective, particularly, when punitive 
consequences flow from its application. Secondly, he contended, 
that the judgment is against the principles of natural justice; the 
Petitioners were not party to the proceedings and they were not 
heard. Thirdly, the impugned judgment nullified all absorptions 
since 1994 even though all the absorptions were not challenged. 
Furthermore, past and closed transactions under the impugned 
legislations cannot be held to be unlawful. Fourthly, he contended 
that the law of deputation says that transfer should be made to a 
post in the same grade. Similarly, repatriation should also be made 
in the same grade to the parent department. Lastly, he submitted 
that the High Court should adjudicate on the matter whether a 
case is covered by the impugned judgment or otherwise. 
 
 
 
 
CRP.No.193/2013 etc 
23 
C.R.P. No. 407/2014 
Shahid Hussain Mahessar vs. Province of Sindh etc 
by Mr. Abdul Rahim Bhatti, ASC 
 
34.   
Mr. Abdul Rahim Bhatti, ASC, argued that on 
27.7.1998, the Petitioner was initially appointed as Assistant 
Director (BS-17) in the I.S.I by the Federal Public Service 
Commission (FPSC), through competitive process. Subsequently, 
the F.P.S.C advertised posts of Deputy Director (BS-18) in the 
Intelligence Bureau. The Petitioner secured first position in the test 
and on 15.10.2005, he was appointed as Deputy Director in the 
I.B. In both organizations i.e. the I.S.I and the I.B, the Petitioner 
had undergone specialized training courses, which includes 
surveillance, interrogation and investigation. On 25.07.2009, 
initially his services were placed at the disposal of Government of 
Sindh on deputation basis for his posting in BS-18, as he belongs 
to Sindh Rural. Later on, through notification, dated 29.6.2012, 
(placed at page 234 of P.B), he was appointed as Superintendent of 
Police (BS-18) by way of appointment by transfer and he severed 
all connections from the I.B.  
35.   
The learned Counsel stated that the Petitioner was not 
a party to the proceedings in which the impugned judgment has 
been passed.  He further contended that as far as his qualification, 
specialized courses and length of service are concerned, they are in 
conformity with the Rules. He was not lacking any requirement. He 
then referred to Rule 3(2) of the Sindh Civil Servants A.P.T Rules. 
He contended that there is no bar against appointment as S.P and 
the Petitioner met all the requirements provided in Rule 3 (2) of the 
Rules. He referred to Serial No.9 of the Schedule to the Rules 
where the post of S.P is mentioned.  
CRP.No.193/2013 etc 
24 
36.   
The learned Counsel argued that the Petitioner joined 
the Special Branch of the Sindh Police and he fulfills all the 
conditions laid down for the Special Branch. He had undergone all 
the training courses in I.S.I and I.B.  
37.   
He submitted that the provision of lateral entry is 
available in all the occupational groups and it is for the 
department to send him for training if the Petitioner lacks in some 
area.  
38.   
He then referred to Rule 7(2) of the APT Rules and 
stated that the case of absorption of the Petitioner was duly 
examined 
by 
the 
appropriate 
Selection 
Board 
and 
was 
recommended by the two I.G.P’s and the Intelligence Bureau. Then 
the matter was referred to the S&GAD where it was further 
examined and a formal summary was moved to the Chief Minister 
who approved it and then notification of absorption of the 
Petitioner was issued in conformity with the Rules.  
39.   
He submitted that there are cases in which officers 
from F.I.A were inducted in the Police and the Courts held their 
induction to be lawful. He submitted that if it was not permissible 
then there was no need to mention the post of the S.P at S.No.9 of 
the Schedule to the Rules.  
40.   
The learned Counsel contended that the Petitioner was 
governed by the Sindh Civil Servants Act, 1973 and he was 
originally a Civil Servant in the I.B and the I.S.I and his services 
were placed at the disposal of the Sindh Government.   
41.   
In support of his submissions he referred to the cases 
of 2004 SCMR 164 and 1993 SCMR 982 to state that even 
CRP.No.193/2013 etc 
25 
absorption of employees of autonomous bodies in the Government 
Department was held to be lawful. He then referred to the case of 
2010 PLC (CS) 1415 and states that in this case the person who 
had not even received specialized police training, yet his 
appointment was held to be lawful. He then submitted that even if 
absorption or appointment by transfer is irregular, the department 
or the functionaries are held responsible and not the individuals. 
In support of his submissions he referred to the cases of 2013 
SCMR 281, 1996 SCMR 413, 1996 SCMR 1350, 2006 SCMR 678 
and 2002 SCMR 1034. He further contended that the impugned 
judgment would be prospective and not retrospective. In support of 
his contention he referred to the cases of 2009 SCMR 1169 and 
2013 SCMR 34. He further contended that after the judgment, the 
Petitioner was repatriated to the I.B, which refused to take his 
services back under the pretext that his lien was terminated when 
he was appointed/absorbed in the Sindh Police. He submitted that 
the case of the Petitioner is that of hardship as he is not even 
drawing his salary from anywhere. 
 
C.R.P.No. 399 of 2013 
Imran Hussain Jaffri v. Farooq Azam Memon and others 
by Mr. Shabbir Ahmed Awan, ASC 
 
42.   
The learned Counsel, Mr. Shabbir Ahmed Awan, 
argued that on 12.7.2010, the Petitioner was appointed as System 
Analyst (BS-18) in the Criminal Prosecution Branch through the 
Sindh Public Service Commission. On 10.9.2011, he was declared 
surplus and absorbed in the Provincial Secretariat Group.   
43.   
The learned Counsel referred to Rule 9 of the A.P.T 
Rules and argued that any person from any department can be 
appointed in PSS, who possesses the matching qualifications. The 
CRP.No.193/2013 etc 
26 
prescribed qualification for induction in PSS is merely graduation 
and the Petitioner has done M.Sc in I.T. He submitted that the 
Petitioner was validly absorbed in PSS under Rule 9 of the Rules. 
He contended that the Petitioner was not party to the main Petition 
in which the impugned judgment has been passed and the 
Petitioner has been condemned unheard. 
 
CRP No.410 OF 2013 
 
 
Jasoo Ram vs. Nasim ul Ghani Sahto etc 
 
 
by Mr. Abdur Rehman Siddiqui, ASC 
44.   
It is contended by Mr. Abdur Rehman Siddiqui, 
Counsel for the Petitioner that he will adopt the arguments of         
Mr. Abdul Rahim Bhatti, ASC on legal side. He contended that the 
Petitioner was posted as Deputy Director (BS-18) in Minority 
Affairs Department, Government of Sindh and was transfered and 
absorbed in BS-18 in ex-PCS cadre on 12.3.2013 and, 
subsequently, was posted as Deputy Secretary in Law Department 
on 3.4.2013. He contended that the Sindh Government in exercise 
of powers under Rule 9(1) of the APT Rules was competent to order 
absorption of the Petitioner. Pursuant to the judgment impugned 
in these proceedings, the Petitioner was de-notified and was 
ordered to be repatriated to his parent department.   
 
CRP No. 396 of 2013 
Dost Ali Baloch vs. Province of Sindh etc 
 
 
by Dr. Farough Naseem, ASC 
45.   
The learned Counsel, Barrister Farough Naseem 
submitted that the Petitioner was not party to the original 
proceedings.  On 20.7.1986, he was inducted as Deputy Assistant 
Director in IB through the competitive examination in BS-17. On 
27.12.1993, Special Branch of Sindh Police requisitioned the 
CRP.No.193/2013 etc 
27 
services of the Petitioner on deputation basis for a period of three 
years. By notification, dated 7.5.1994, the I.B relieved him of his 
duties to join the Special Branch of the Sindh Police as DSP. At 
times, the Sindh Police refused to repatriate the Petitioner to the 
I.B due to law and order situation in the Province. In the 
meanwhile, the Petitioner was promoted on 2.2.1997 in BS-18. In 
the intervening period, in 1993, the Petitioner passed the CSS 
examination, and was recommended to be appointed in the Office 
Management Group (OMG). The Petitioner made an Application to 
the Sindh Police to relieve him so that he could join the Civil 
Services Academy, but the Sindh Police refused to relieve him.  The 
Petitioner was required to report to the Civil Services Academy by 
15.12.1994, but, due to refusal of the Sindh Government, he could 
not take up his appointment in the OMG. According to the learned 
Counsel, the Petitioner kept on insisting for repatriation since 
1995 but the Sindh Government has declined. The Petitioner has 
performed exceptionally well and, apart from performing his duties, 
he was organizing technical upgradation, etc. and his retention 
was required to maintain the continuity and consistency of the 
department. On 14.10.1998, a notification was issued with the 
approval of the competent authority, permanently absorbing the 
Petitioner as SP Political Special Branch, Sindh Police in relaxation 
of rules.  
46.   
The learned Counsel referred to Rule 4 and Rule 10 of 
Sindh Civil Servants (APT) Rules, 1974 and Rule 4(3) of Sindh 
Public Service Commission Functions Rules, 1990 and contended 
that an officer can be appointed without competitive examination 
by the order of the Chief Minister. The learned Counsel submitted 
that all pubic powers are to be exercised fairly, justly and 
CRP.No.193/2013 etc 
28 
reasonably in furtherance of public interest. The Chief Minister 
cannot blindly do anything, but in exceptional cases like the 
present one, where the Government of Sindh was instrumental in 
preventing the Petitioner from joining the Civil Service the 
Petitioner who was highly qualified and was retained in Sindh 
Government to maintain law and order in Karachi, the competent 
authority was justified under Rule 4(3) to absorb the Petitioner in 
Sindh Government.  
47.   
The learned Counsel stated that after rendering 20 
years of service with the Sindh Police, the Sindh Government has 
repatriated the Petitioner when his lien had been terminated. He 
lost an opportunity to be part of the OMG due to non-relieving by 
the Sindh Government. He is an officer of BS-20, currently holding 
no post, and his lien in IB has also been terminated. Counsel then 
referred to the case of Muhammad Malik v. Province of Sindh (2011 
PLC (CS) 1456) while submitting that the Petitioner cannot be 
compared to PSP because he is in a separate cadre, i.e. Sindh 
Police. The learned Counsel contended that the Petitioner is 
wrongly de-notified.  
CRP No. 398 of 2013  
 
 
 
Muhammad Riaz etc vs. Province of Sindh etc 
 
 
 
by Mr. M. Shoaib Shaheen, ASC 
 
48.   
Mr. M. Shoaib Shaheen, learned ASC submitted that 
the Petitioner was a regular employee of the Anti Narcotics Forces 
(ANF) since 1989 and was working as Assistant Director in BS-17 
when on 13.5.2003, he was transferred and posted on deputation 
as DSP in the Sindh Police. The Petitioner was absorbed by 
notification, dated 26.02.2008, and promoted twice. There was a 
dispute regarding his seniority which was resolved by the Sindh 
CRP.No.193/2013 etc 
29 
Service Tribunal and the High Court of Sindh, approving the 
Petitioner’s backdated seniority and that matter attained finality. 
The learned Counsel in support of his contention has relied upon 
the case of Pir Bakhsh vs. The Chairman, Allotment Committee and 
others (PLD 1987 SC 145). The learned Counsel submitted that the 
Petitioner’s transfer from ANF to Police under Rules 3(2) and 9(1) of 
APT Rules, 1974, was justifiable.  
49.   
The learned Counsel contended that the impugned 
judgment declares that absorption can only be made under Rule  
9-A, however, absorption can also be made under Rule 9(1). The 
Counsel further stated that the Petitioner’s transfer has not been 
validated under the legislative instruments that have been struck 
down. He submitted that the impugned judgment does not clarify 
exactly which absorptions are illegal and that even legal appointees 
have been affected by the impugned judgment, and this Honorable 
Court must review this judgment.  
 
CRP No.387 of 2013  
Imdad Memon and 2 others v. Province of Sindh etc  
by Mr. Hamid Khan, Sr. ASC 
 
50.   
Mr. Hamid Khan, learned Sr.ASC, submitted that the 
Petitioners were validly appointed by transfer and absorbed. He 
submitted that Rules 9(1) provides for appointment by transfer, 
and by promotion. By the impugned judgment it has been held 
that an employee can only be absorbed under Rule 9-A but not 
under Rule 9(1). He submitted that Rule 9(1), has to be read with 
Rule 7(2) and (3) of the Rules. According to the learned Counsel the 
word ‘Person’ used in Rule 9(1) would include any person, and 
competent authority is conferred powers to appoint him by transfer 
which includes absorption in that post. The learned Counsel 
CRP.No.193/2013 etc 
30 
further submitted that lateral movement between the departments 
is permissible by the Rules of 1974.  
Crl.R.P.No.38 of 2014 
Asma Shahid Siddiqui vs. Chief Secy. Govt. of Sindh 
In person 
 
51.   
The Petitioner, appearing in person, argued that in the 
year 1996, she was appointed as Forest Ranger (BS-16) in the 
Forest Department on the recommendations of the Punjab Public 
Service Commission. She was married in 1996 and her husband 
was also a Forest Ranger in the Sindh Forest Department, 
therefore, she applied for inter-provincial transfer to the Forest 
Department, Government of Sindh, on the basis of Wedlock Policy. 
On 11.2.1997, she was absorbed in the Sindh Forest Department 
as Forest Officer (BS-16). She submitted that during the 
interregnum, she also qualified the Sindh Public Service 
Commission examination for appointment to the post of Assistant 
Registrar (BS-17) in the Co-operative Department, Government of 
Sindh, and she worked as such for some time, but due to future 
prospects she came back to the Forest Department. She contended 
that at the time of passing of the impugned judgment, she was 
working as Divisional Forest Officer, Hyderabad, when she was 
ordered to be repatriated to the Forest Department, Government of 
Punjab. She contended that her lien in the Government of the 
Punjab had been terminated, therefore, the Government of Punjab 
had refused to take her services back. She, therefore, requested 
that her notification of repatriation may be ordered to be 
withdrawn.  
 
CRP.No.193/2013 etc 
31 
C.R.P.No. 408 of 2013 in CA 12-K of 2012 
Muhammad Rizwan Soomro vs. Province of Sindh etc 
by Mr. Abdul Rahim Bhatti, ASC 
 
52.   
The learned Counsel argued that, on 11.7.2006, the 
Petitioner was appointed as Assistant Director (Investigation) in the 
NAB. On 2.4.2008, his services were requisitioned by the S&GAD, 
Sindh, for posting in Government of Sindh, on deputation basis; 
whereafter, on 10.5.2008, he was absorbed/inducted in the Sindh 
Police as DSP (BS-17). The learned Counsel submitted that Rule 
9(1) of the Sindh Civil Servants (Appointment, Transfer and 
Promotion) Rules, 1974 confers ample powers upon the competent 
authority to appoint a person by way of transfer and the procedure 
provided for appointment in these Rules was duly followed while 
making appointment of the Petitioner. He further contended that 
National Accountability Bureau is a subordinate office of the 
Ministry of Law and the Petitioner was a Civil Servant.  
C.R.P. No. 402 of 2013 (Shamsuddin Sheikh vs. Province of Sindh etc) 
C.R.P No. 403 of 2013  (Nizamuddin Sheikh vs. Province of Sindh etc) 
 
 
 
by Mr. Khurram Mumtaz Hashmi, ASC 
53.   
Mr. Khurram Mumtaz Hashmi, learned ASC, for the 
Petitioners has contended that Petitioner in C.R.P.No.402 of 2013, 
the Petitioner was appointed as Sub-Engineer (BS-11) in Public 
Health Engineering Department, Government of Sindh, on 
9.8.1984. On 29.9.1987, he was appointed as Assistant Engineer 
in Public Health Department and was again promoted as Executive 
Engineer (BS-18) on 6.10.1999. On 14.05.2005, the Government of 
Sindh S&GAD Department requisitioned the services of the 
Petitioner on deputation basis for an initial period of 2 years, for 
his posting in Works and Services Department. On 26.5.2007, the 
period of deputation was extended for another 2 years by the 
CRP.No.193/2013 etc 
32 
S&GAD Department, Government of Sindh. Consequently, on 
8.10.2007, he was absorbed as executive Engineer (BS-18) in the 
Works and Service Department, Government of Sindh and his 
name was placed at the bottom of seniority list of Executive 
Engineers of the Department. The learned Counsel submitted that 
the Petitioner was transferred from one non-cadre to the other 
non-cadre post, therefore, his case is not covered by the judgment. 
54.   
The learned Counsel submitted that the position of the 
Petitioner in C.R.P No.403 of 2013 was similar, as on 12.9.1994, 
he was appointed as Executive Engineer (BS-17) in Water and 
Sewerage 
Board, 
Karachi 
(KWSB). 
On 
25.10.1994, 
the 
appointment of the Petitioner was regularized and on 27.10.2008, 
he was promoted as Executive Engineer (BS-18) in the KWSB. 
Consequently, on 18.8.2008 he was absorbed as Executive 
Engineer (BS-18) in the Works and Services Department, 
Government of Sindh. Lastly, he submitted that the impugned 
judgment is not a judgment in rem but is a judgment in personam.  
 
C.R.P No. 400 of 2013 in CP No. 71 of 2011 
Saeed Ahmed Sheikh etc vs. Province of Sindh etc 
by Mr. Muhammad Ibrahim Bhatti, ASC 
 
55.   
The learned Counsel contended that Petitioner No.1 
was initially appointed as Section Officer in Provincial Secretariat 
Service (BS-17) on the recommendation of the Sindh Public Service 
Commission. On 26.11.2010, he was promoted as Deputy 
Secretary and on 14.3.2013, the notification of absorption of the 
Petitioner in ex-PCS in BS-18 in exercise of powers of section 24 of 
the Sindh Civil Servants Act, 1973 was issued.  
CRP.No.193/2013 etc 
33 
56.   
Petitioner No. 2 Gulshan Ahmad Sheikh was appointed 
vide notification, dated 29.10.1991 as Additional Private Secretary 
in Chief Minister Secretariat. In the intervening period, he was 
appointed as Protocol Officer and on 26.3.2008, the post was 
upgraded from BS-17 to BS-18. On 14.3.2013, he was absorbed in 
ex-PCS by CM, Sindh in exercise of power under section 24.  
57.   
The learned Counsel contended that section 24 confers 
ample powers upon the competent Authority to absorb/induct an 
officer from one cadre to another cadre. Therefore, absorption of 
the Petitioner in ex-PCS was validly made.   
 
CRP. No. 411 of 2013 in CA.12-K of 2012 
Zameer Ahmad Abbasi v. Province of Sindh etc 
by Mr. Abdul Rahim Bhatti, ASC 
 
58.   
The learned Counsel contended that the Petitioner was 
initially appointed as Assistant Director (BS-17) in the National 
Accountability Bureau on the recommendations of the Federal 
Public Service Commission. He received specialized training from 
the National Police Academy Islamabad. The S&GAD Department 
Government of Sindh requisitioned the services of the Petitioner on 
deputation. Finally, on 29.2.2012, he was absorbed as DSP               
(BS-17) in Sindh Police by the S&GAD Department. The learned 
Counsel contended that the appointment of the Petitioner was 
made by transfer as per Rule 6(1) of the APT Rules. Therefore, his 
absorption in the Sindh Police was valid. He further contended 
that as per Recruitment Rules for the post of DSP, the post of DSP 
is a non-cadre post and the Petitioner was absorbed against the 
same.  
 
CRP.No.193/2013 etc 
34 
Crl.RP No.74 of 2013 
Ghulam Nabi Babar Jamali etc v. Chief Secretary, Sindh 
by Mr. Adnan Iqbal Ch. ASC 
 
59.   
Mr. Adnan Iqbal Ch, learned Counsel for the 
Petitioners submitted that the Petitioners were not party to the 
original proceedings. Petitioner No.1 is a Civil Diploma holder 
appointed initially on 01.06.1984 as Sub Engineer in BS-11 in the 
Irrigation Department. On 3.12.2003, he was promoted to BS-16 
after a delay of 8 years; he had passed his examinations and was 
entitled to promotion in 1996. On 26.1.2004, he was promoted out 
of turn for ‘gallantry’ in performance of his duties to BS-17 as 
Assistant Engineer.  
60.   
The learned Counsel submitted that on 22.8.1988, 
Petitioner No.2 was appointed as Sub Engineer in BS-11 in the 
Irrigation Department. On 22.8.1994, he was promoted from            
BS-11 to 16 and on 06.10.2003, he received out of turn promotion 
to BS-17. 
61.   
The learned Counsel submitted that Section 9-A of the 
Sindh Civil Servants Act, 1973 and Rule 8B of the Sindh Civil 
Servants (APT) Rules, 1974 allow out of turn promotion and have 
not been struck down by the impugned judgment. Therefore, the 
portion of the impugned judgment that nullifies out of turn 
promotions needs to be revisited because the Rule that allows out 
of turn promotion is still on the statute book.  
62.   
The learned Counsel submitted that Section 9-A is 
applicable to all and is not confined to the Police Personnel, so 
‘promotion for gallantry act’ can be given to all Civil Servants. He 
submitted that the word gallantry has been used and defined in 
CRP.No.193/2013 etc 
35 
the Decorations Act, 1975. It states gallantry is a trait that could 
be exhibited by any Civil Servant regardless of opportunity 
presented to him in the field. If the opportunity of exhibiting 
gallantry only arises in the Police Department, it does not mean 
that other Civil Servants cannot display gallantry. He then referred 
to the use of the word gallantry in Article 259 of the Constitution. 
The learned Counsel submitted that the portion of the impugned 
judgment that confines Section 9A and Rule 8B to the Police Force 
should be removed. 
63.   
He next contended that the phrase ‘beyond the call of 
duty’ used in section 9-A should be interpreted in a broader sense, 
so as to extend its benefit to all Civil Servants. He submitted that a 
Civil Servant can be granted out of turn promotion by applying this 
principle and the case of the Petitioner falls within Rule 8B. 
64.   
He further submitted that Section 9-A was inserted in 
2002, which prescribed mode for granting out of turn reward and 
award by Rules framed in 2005. Rule 8B was introduced in 2005, 
which provides for constitution of a committee to examine all out of 
turn promotions. Since the impugned legislations have been 
declared illegal by the judgment under review, the learned Counsel 
submitted that the decision of the High Court of Sindh is still in 
the field. The learned Counsel further contended that out of turn 
promotion was declared unlawful in Nadeem Arif v. IG Police, 
Punjab, Lahore (2010 PLC (CS) 924). However, before this 
judgment in 2010, out of turn promotions had been endorsed and 
approved in numerous judgments including Capt. (Retd.) Abdul 
Qayyum v. Muhammad Iqbal Khokhar (PLD 1992 SC 184), Punjab 
Seed Corporation v. Punjab Labor Appellate Tribunal (1996 SCMR 
CRP.No.193/2013 etc 
36 
1946), Government of Punjab v. Raja Muhammad Iqbal (1997 SCMR 
1428), IG Police Lahore v. Qayyum Nawz Khan (1999 PLC (CS) 
1381), Raja Shoukat Mehmood v. Azad Jammu and Kashmir 
Government (2003 PLC (CS) 424) and IG Police, Lahore v. 
Muhammad Iqbal (2007 SCMR 1864). The Petitioners were 
promoted out of turn in 2004; therefore Nadeem Arif’s case (supra) 
does not apply to them since change in enunciation of law is 
prospective and, therefore, their cases should be assessed under 
Rule 8B. 
 
Crl.RP No.75 of 2013 
Ghulam Hussain Korai v. Province of Sindh 
In person 
 
65.   
The Petitioner appeared in person and stated that he is 
aggrieved by the notification, dated 02.07.2013. He submitted that 
on 02.07.1995, he was appointed as Assistant Sub Inspector in 
Central District Karachi under ‘shaheed quota’, as a result of the 
martyrdom of his brother, Mohammad Bux Korai. On 07.12.2001, 
he was promoted as Sub Inspector by the competent authority. A 
Committee was constituted which recognized the Petitioner’s 
participation in numerous encounters and his injury in an 
encounter in 2004. As a result, on 03.04.2008, he was promoted 
as Police Inspector in recognition of recovery of a container worth 
Rs.10 crore. He was working as Inspector in (BS-16) in Sindh 
Police when on 19.11.2009, he was sent on deputation for 2 years 
as DSP (BS-16) District Prison Malir, which period was extended 
for another 2 years. On 15.3.2013, he was absorbed as DSP in  
BS-16 with effect from 19.11.2009. He was next appointed as 
Officiating Superintendent for 22 months at Sanghar Jail in BS-17 
in OPS. His parent department called him back but I.G. Prisons 
CRP.No.193/2013 etc 
37 
refused to repatriate him. He was repatriated to his parent 
department when the impugned judgment was implemented. The 
Petitioner submits that he has been reverted to his substantive 
post of Inspector. He contended that he was appointed by transfer 
in Prison Department under Rule 9(1), which was a valid 
appointment.  
 
CRP No.76 of 2013 
Hafiz Safdar Shekih v. Javed Ahmed etc 
by Mr. Shabbir Ahmed Awan, ASC 
66.   
The learned Counsel, Mr. Shabbir Ahmed Awan, 
submitted that the Petitioner was not a party to the original 
proceedings. He is a Civil Engineer appointed as Assistant 
Engineer at Works and Services Department, Government of Sindh 
in March, 1993. On 16.03.1995, he qualified through Public 
Service Commission to be appointed as Assistant Executive 
Engineer (AEE) in BS-17. In January 2006, his services were 
requisitioned by the Anti-Corruption Establishment (ACE) as 
Technical Officer under the rules on deputation, and, on 
10.03.2008, he was absorbed as AEE. He was promoted to BS-18 
in the Anti-Corruption Department. The contention of the learned 
Counsel is that once the Petitioner was appointed by transfer in 
Anti-Corruption Establishment under Rule 9(1) he could not have 
been called back to his parent department.  
 
Crl.RP No. 77 of 2013 
Talib Muksi v. Province of Sindh etc 
by Mr. Yawar Farooqui, ASC 
 
67.   
The learned Counsel Mr. Yawar Farooqui submitted 
that in 1993, the Petitioner was appointed in BS-17 in Local Govt. 
Department, Balochistan as Assistant Director. He was promoted 
CRP.No.193/2013 etc 
38 
to BS-18. He contended that the Petitioner’s son was attacked and 
he spent two months with his son at Agha Khan Hospital Karachi, 
where he underwent treatment. The Petitioner applied to the CM, 
Sindh for transfer on humanitarian grounds, and his transfer was 
made under section 10 of Balochistan Civil Servants Act. On 
03.09.2010, he was posted as Director Food, Sindh by the CM in 
exercise of his powers under section 24 of the Sindh Civil Servants 
Act, 1972. He was then appointed as EDO Finance, Sindh and on 
14.03.2013, was absorbed in ex-PCS without going through any 
competitive process. The Petitioner was repatriated to the 
Balochistan Government in the wake of the impugned judgment; 
however, he has severed all connections with the Balochistan 
Government, therefore, he could not be repatriated.  
 
Crl.RP No. 79 of 2013 
Syed Shakir Hussain v. Province of Sindh etc 
by Mr. Rana Azam-ul-Hassan, ASC 
 
 
68.   
The learned Counsel Mr. Rana Azam ul Hassan 
submitted that Petitioner was not party to the proceedings. On 
02.07.1995, 
he 
joined 
Jail 
Department 
as 
Assistant 
Superintendent Jail in BS-14 and on 15.11.2004, he was promoted 
to BS-16 as Deputy Superintendent with the approval of the 
relevant authority under section 9-A. The learned Counsel 
submitted that the Petitioner was promoted to BS-17 out of turn 
which promotion was reversed. The grievance of the Petitioner is 
that appointees of his batch, who were junior to him, have been 
promoted to BS-17 on regular basis and he has been relegated to 
BS-16 in the wake of the impugned judgment. He submitted that 
the Petitioner should also be considered for promotion to BS-17 
CRP.No.193/2013 etc 
39 
and his seniority be fixed along with his other colleagues, who were 
appointed with him in the year 1995 in BS-14. 
 
Crl.RP No. 78 of 2013 
Dur Muhmmad Panhwar v. Province of Sindh 
by Mr. Irfan Qadir, ASC 
 
69.   
The learned Counsel Mr. Irfan Qadir submitted that 
the Petitioner, who is qualified as MA-LLB, was appointed as 
Senior Auditor in Pakistan Military Accounts, Ministry of Defence, 
Government of Pakistan in BS-11 on regular basis as a Civil 
Servant. He was then posted in the office of the Controller Naval 
Accounts Karachi and the post was subsequently upgraded to          
BS-14. On 07.11.2007, his services were requisitioned and placed 
at the disposal of Sindh Government, and he was sent on 
deputation for 5 years. In 2010, his post was again upgraded to 
BS-16. He was posted in Solicitors Department and was 
discharging similar duties as of his parent department. He was 
allowed to work as Superintendent in Solicitors Department in  
BS-16 till 06.11.2010. By order, dated 14.04.2012, the Petitioner 
was permanently absorbed. However, in pursuance of the 
impugned judgment, the Petitioner’s absorption was withdrawn 
and he was repatriated to his parent department.  
70.   
The learned Counsel argued that there are specific 
Rules framed for this post in pursuance of Rule 3(2) of the APT 
Rules which state that 30% of posts shall be for appointments by 
transfer. Furthermore, the Petitioner was transferred under Rule 
9(1), which is still intact. Therefore, his appointment was valid and 
lawful. The Petitioner’s appointment was not in violation of the 
rules or the judgment but his repatriation from the Sindh 
Government was without notice. The Petitioner was placed at the 
CRP.No.193/2013 etc 
40 
bottom of the seniority list, did not receive any benefit under the 
struck down provisions and he had not earned any out of turn 
promotion. 
71.   
The learned Counsel further submitted that the Court 
should not dwell on academic issues. He next contended that this 
is not a public interest litigation and principles of justice have been 
violated in the judgment under review as thousands of officers 
have been condemned unheard. Therefore, the principle of audi 
alteram partem has been violated and the officers were denied their 
fundamental rights of hearing, fair trial under Article 10A of the 
Constitution. 
The 
Counsel 
argued 
that 
the 
judgment 
is 
discriminatory and violates Article 25, as some officers were heard 
while others who were not party were not heard.  
72.   
The fact that all these Petitions have been jumbled 
together is an error apparent on the face of the record. The mess 
created by excessive use of suo motu powers should now be cleared 
and these decisions should be reviewed. The Counsel contended 
that the judgment is vague, unclear and contains gross errors 
pertaining to the Constitution and laws, as under Article 184 (3) of 
the Constitution, this Court cannot examine the questions relating 
to terms and conditions of service. The proceedings are void ab 
initio because the judges of the Honorable Court were under a 
wrong impression of the law that the Judgment of the High Court 
of Sindh was to apply in rem and not in personam. The Counsel 
referred to Articles 189 and 190 of the Constitution and submitted 
that the judgment was to apply in personam and it must apply 
prospectively, not retrospectively. When a principle of law is laid 
down, it applies prospectively. The Counsel referred to Pir Buksh’s 
CRP.No.193/2013 etc 
41 
case PLD 1987 SC 145, in which writ petitions were decided by the 
High Court against which the Government filed Appeals but in one 
case no Appeal was filed. Therefore, it was decided that since his 
case was not before the Court, no adverse order could be passed 
against him. Hence, his rights were taken away because he was 
not heard. Therefore, the judgment under review will apply purely 
in personam and not in rem. The Counsel further submitted that 
the Supreme Court in fact implemented the judgment of the High 
Court and this Court is not the forum for this.  
73.   
The learned Counsel contended that there are major 
inconsistencies within the judgment. He submitted that in para. 
116 of the judgment, it has been held that absorption is legal if an 
officer 
is 
transferred 
to 
a 
post 
that 
requires 
matching 
qualifications, expertise and experience. But para. 175 declares all 
absorptions illegal. Furthermore, the judgment prohibits transfer 
of Civil Servants to non-cadre posts, however, there is no law that 
prohibits transfer of a person against a post held by a Civil Servant 
especially when the qualifications match.  No embargo has been 
placed on the legislature by the Constitution to include anybody 
within the ambit of Civil Servant; Article 240 of the Constitution 
provides to the contrary. The Counsel submitted that Rule 9(1) 
uses the term ‘person’, therefore it is not confined to any Civil 
Servant, government servant or public servant only.  
74.   
The learned Counsel further submitted that the 
concept of absorption and lateral entry is not alien to the country’s 
jurisprudence. This is evident from Rule 8(1) of Civil Service of 
Pakistan (Composition and Cadre) Rules 1954, Rule 8 of Trade and 
Commerce where people can be appointed directly, Rule 7 of 
CRP.No.193/2013 etc 
42 
Customs, Rule 9 of Foreign Affairs, Rule 7 of Income tax, Rule 8 of 
Information, Rule 9(c) of OMG and Rule 7 of Police Group. 
Thousands of appointments will have to be repatriated in the 
Federal Government and Punjab Government if absorptions are 
declared illegal because law has to be applied equally. In para. 
128, the impugned judgment held that a deputationist should be a 
Government Servant, and there is no emphasis that it should be 
Civil Servant specific. And, there is no law with such a requirement 
either. But it has been held to the contrary in para. 129 and the 
judgment in Lal Khan’s case (supra) being relied upon is non-
existent.  
 
Crl.RP No. 81 of 2013 (Tariq Mughal v. Chief Secretary, Sindh) 
Crl.RP No. 82/2013    (M. Hanif Solangi v. Chief Secretary, Sindh) 
 
 
 
      by Mr. Muhammad Munir Paracha, ASC 
 
75.   
The learned Counsel Mr. Muhammad Munir Paracha, 
ASC submitted that on 23.09.1998, Petitioner no. 1, Tariq Mughal 
was appointed as Assistant Executive Engineer (BS-17) on ad hoc 
basis for 6 months in Port Bin Qasim Authority. His post was 
regularized on 10.04.1991 w.e.f 06.08.1990. On 16.05.1993, he 
was sent on deputation for 3 years as Assistant Executive 
Engineer, ZMC East and on 21.02.1994, he was absorbed in Sindh 
Council Unified Grade Service in BS-17. On 02.07.2013, he was 
reverted in implementation of the impugned judgment. The 
Counsel contended that the judgment is violative of the Order 
XXVII-A Rule 1 of CPC because no notice was issued to the 
Advocate General/Attorney General. This was essential as the 
Court was examining the vires of legislation.  The Counsel relied 
upon the case of Federation of Pakistan v. Aftab Ahmad Sherpao 
(PLD 1992 SC 723) in support of his contention. He submitted that 
CRP.No.193/2013 etc 
43 
proceedings taken under Article 184 (3) are barred under Article 
212 of the Constitution as the proceedings were relatable to the 
terms and conditions of the Civil Servants and Article 184 (3) is 
controlled by the Article 212 of the Constitution. 
76.   
The Counsel submitted that legislative instruments 
can be held ultra vires only on the following 5 grounds; 
competence of the legislature to legislate such laws, inconsistency 
with fundamental rights, violation of any provision of the 
Constitution, inconsistency with injunctions of Quran and Sunnah 
(declared by the Federal Shariat Court and Shariat Appellate 
Bench of this Court) and Federal Money Bill. None of the aforesaid 
grounds existed to reach such a conclusion.  
77.   
The learned Counsel submitted that appointment can 
be made through promotion or by direct transfer. He next 
contended that the definition of Civil Servant has been wrongly 
interpreted. Everyone working in the affairs of the Province is a 
Civil Servant, not just those who pass competitive examinations. 
The Court has the power to determine legislative intent, but it 
cannot declare a law as bad law unless it is invalid. If the Court 
interprets law in a way that it is against the intent of the 
legislature, the legislature can revalidate the law so that its true 
intent is followed. The Counsel submitted that if a judgment 
interprets law or a law is struck down due to incompetency of 
Legislature, it can have retrospective effect. However, if a law is 
invalid because it is inconsistent with fundamental rights, as is the 
case in the judgment under review, the judgment must be 
prospective.  
CRP.No.193/2013 etc 
44 
78.   
On 01.03.1990, Petitioner no. 2 Muhammad Hanif 
Solangi was appointed as Assistant Security Officer (BS-12). In 
1994, the post was upgraded to BS-14. On 19.06.2004, he was 
promoted as Security Officer in BS-16 and on 25.10.2008, he was 
appointed as Deputy Director Coordination. This post was also 
upgraded on 19.05.2009. On 15.08.2012, he was assigned charge 
of Secretary, SITE. Subsequently, he was appointed Deputy 
Director Admin and Land Management in SITE Ltd Karachi by 
promotion. He was appointed by transfer and on 22.10.2012, he 
was absorbed as Deputy Secretary, in the PSS by transfer.  
 
CMA No.583 of 2013 in Crl.RP No. 83 of 2011 
Inayatullah Qureshi v. Province of Sindh ETC 
by Mr. Shabbir Ahmed Awan,  ASC  
 
79.   
Mr. Shabbir Ahmed Awan, learned ASC contended 
that the judgment is not applicable to the Petitioner. On 
10.05.1987, he was appointed as Research Officer (BS-17) in 
Government of Pakistan in Planning and Development Division. On 
30.11.1989, his services were requisitioned by Government of 
Sindh, P&D Division as Planning Officer in Project Appraisal 
Section, P&D Division w.e.f 14.11.1989 on the recommendations of 
Sindh 
Public 
Service 
Commission 
by 
notification, 
dated 
21.10.1992. The post was advertised and on the recommendations 
of Federal Public Service Commission, the Petitioner was appointed 
as Assistant Chief (BS-18) on 21.07.1997. He was then promoted 
and appointed as Deputy Chief in BS-19 w.e.f 15.12.2003 and on 
18.08.2004, he was sent on deputation. On 12.4.2008, he was 
absorbed as Director, Planning and Development Department in 
Government of Sindh in BS-19, in accordance with section 10A(2) 
of Sindh Civil Servants Act, 1973. The learned Counsel contended 
CRP.No.193/2013 etc 
45 
that he was not a beneficiary of any of the Acts/Ordinances which 
had been declared ultra vires. Therefore, the judgment does not 
apply to the Petitioner. Furthermore, nobody had the experience or 
qualification to be appointed to this post so the Petitioner has not 
taken up any other Officer’s place. The Rules of Business of Sindh 
and the Federation are exactly the same. Therefore, the Petitioner 
was protected by the principle of locus poenitentiae. The Counsel 
submitted that his lien has now been terminated and he is not 
posted anywhere.  
 
CMA No.860 of 2013 
Mir Hussain Ahmad Lehri v. Sindh 
by Mr. Shabbir Ahmed Awan, ASC 
 
80.   
The learned Counsel, Mr. Shabbir Ahmed Awan, 
contended that on 28.03.1991, the Petitioner was appointed DSP 
through the Balochistan Public Service Commission in BS-17. His 
services were requisitioned by the Sindh Government on 
deputation and subsequently, on 27.10.2003, he was permanently 
absorbed in Sindh Police as DSP. On 14.01.2005, he was promoted 
on the recommendations of the Selection Board as Superintendent 
of Police (BS-18). In accordance with the Police Service of Pakistan 
(Composition, Cadre & Seniority) Rules, 1985, he was encadered 
as Superintendent of Police in Police Service of Pakistan.  As a 
result of the judgment under review, the Petitioner has been 
repatriated to Balochistan Police as DSP.  
 
CRP No. 401 of 2013 
Gul Hassan Zardari v. Province of Sindh etc 
In person 
 
81.   
The Petitioner appeared in person and submitted that 
in 1990, he was appointed as Sub Inspector in the Intelligence 
CRP.No.193/2013 etc 
46 
Bureau. He was appointed as Sub Inspector in Sindh Police in 
1994 through proper procedure with NOC. Subsequently, he was 
promoted as Inspector in the Sindh Police and posted at 
Nawabshah, Police Lines. In pursuance of the impugned judgment, 
he has been repatriated to the IB, which department has refused to 
take him back after 26 years as his lien was terminated and now 
he is nowhere.  
 
CMA No.6628 of 2013 in SMRP No.239 of 2013 
Shiraz Asghar Sheikh v. Dr. Nasimul Ghani Sahto etc 
 
 
by Mr. Abdul Rahim Bhatti, ASC 
 
82. 
  
The learned Counsel, Mr. Abdul Rahim Bhatti, 
contended that on 21.4.2007, the Petitioner was appointed to 
PEMRA on regular basis as Assistant General Manager (BS-17). He 
was working as Field Enforcement Officer at Sukkur. On 
19.5.2008, his services were requisitioned and on 15.8.2008, NOC 
was issued by PEMRA to join Sindh Government. On 20.8.2008, 
Services and General Administration Department (S&GAD) placed 
his services at the disposal of Provincial Police Services. On 
17.01.2009, he was sent for training to National Police Academy, 
Islamabad. The Counsel contended that the Petitioner was not 
given backdated seniority. He completed his training from Police 
Academy and was relieved on 15.7.2010. He was appointed as DSP 
(BS-17) in the Sindh Police. The learned Counsel submitted that 
the Petitioner was not party to the proceedings; he was condemned 
unheard and the principle of audi alteram partem was violated.  
83.   
The learned Counsel contended that Rule 9(1) of the 
APT Rules is for regular appointees. The Petitioner’s appointment 
was made under Rule 3(2) and all requirements of the rules were 
CRP.No.193/2013 etc 
47 
satisfied. He submitted that the requirement of passing the exam 
of the Public Service Commission is for initial appointment and not 
for appointment by transfer. Furthermore, the Petitioner was 
required to conclude and complete the training before his 
appointment as DSP and he has competed the training. The 
Counsel further contended that the Petitioner’s lien with PEMRA 
has been terminated. 
 
Crl.RP No. 84 of 2013 
Khurram Warris v. Chief Secretary Sindh 
by Mr. Irfan Qadir, ASC 
 
84. 
 
The learned Counsel, Mr. Irfan Qadir, submitted that 
the Petitioner was granted out of turn promotion for gallantry 
beyond the call of duty by risking his life. He displayed 
extraordinary bravery. However, because of the impugned 
judgment, these promotions have also been declared illegal. The 
Counsel contended that there are inconsistencies between para. 
146 and para. 148 of the impugned judgment. These matters of 
out of turn promotions were supposed to be scrutinized by a 
committee according to HC judgment but such committee was 
never constituted.  
 
Crl.O.P No.121 of 2013 (a/w CRP 193/2013) 
Muhammad Shamil Hingorjo vs. Muhammad Ejaz 
Chaudhry, Chief Secretary Sindh and others 
by Mr. M.M. Aqil Awan, ASC 
 
85.   
The learned Counsel Mr. M.M. Aqil Awan submitted 
that five officers have filed this contempt application. Petitioners 1, 
2 and 3 were never absorbed but they are still here in Appeal as a 
result of the department exercising its influence and relieving them 
of their duties. Services and General Administration Department 
CRP.No.193/2013 etc 
48 
has issued orders to repatriate the Petitioners but they are not 
being implemented.   
 
CMA No.353 of 2014 in Crl.R.P No. 39/2014 
Munir Ahmed Phulpoto v. Province of Sindh 
by Mr. Z.K. Jatoi,  ASC 
 
86.   
The Counsel submitted that the Petitioner was not a 
party to these proceedings and he has only been granted one out of 
turn promotion for gallantry under section 9-A. On 13.03.1990, he 
was appointed ASI. In 1998, he was promoted as Inspector with 
his batchmates. His gallantry acts were recognized in a meeting on 
20.01.2009, referred to on pg. 150 of the paper book, as a result of 
which he was promoted as DSP. 
 
C.R.P. No.125 of 2014 in Const. Petition No.71 of 2011 
Dr. Atta Muhammad Panhwar v. Province of Sindh etc 
by Dr. Farough Naseem, ASC 
 
87.   
The learned Counsel, Mr. Farough Naseem, filed 
documents on behalf of the Petitioner. The Petitioner had passed 
the CSS examination in 1990 and was allocated Information 
Group. While in service, a post was advertised on 14.09.2008 in 
Public Sector Organization in Alternative Energy Development 
Board (AEDB), Federal Government. The Petitioner made an 
application and he was offered an appointment, by notification, 
dated 17.12.2008, which he accepted. It was a fresh appointment 
and he was appointed as Secretary to the Board in BS-20. He had 
made no application but the Federal Government placed him his 
services at the disposal of the Sindh Government by order, dated 
10.07.2010. His services were requisitioned because they required 
officers having technical knowledge in information sector. On 
09.08.2010, he was appointed as Special Secretary at CM 
CRP.No.193/2013 etc 
49 
Secretariat. He was given a charge to be posted as DG, Malir 
Development Authority on 16.07.2011. Then, by notification, dated 
19.08.2011, he was appointed DG, MDA in the Local Government 
under section 6 of Malir Development Authority Act, 1994. He was 
not absorbed but appointed afresh. Counsel submitted that the 
post was not advertised; the procedure of appointment is silent. 
(MDA is a statutory body that falls under the Local Government). 
88. 
 
The Petitioner was absorbed in PCS cadre but now 
that appointment has been reversed as a result of the judgment 
under review. After the judgment was pronounced on 12.06.2013, 
in order, dated 02.07.2013, Dr. Atta’s parent department was 
listed as MDA/Federal Environmental Board so confusion was 
created. However, the last post to which he was appointed was DG 
MDA. Federal Environmental Board has terminated his lien. He 
should be appointed in MDA in non-cadre post and be allowed to 
remain in Local Government.  
89. 
 
The learned Counsel submitted that an order was 
passed in the judgment under review that those on deputation 
should be reverted but those absorbed were reverted as well. The 
Counsel submitted that the Petitioner is not asking to be appointed 
as DG, but he should be appointed in MDA, because his lien with 
the Information Group has been terminated.  
90. 
 
The Counsel submitted that the judgment under 
review held that absorption can only be made under Rule 9-A. 
Secondly, he submitted that the effect of the judgment is such that 
the power available to the CM, which must be exercised justly, 
equitably and reasonably, under Section 24 of the Act of 1973, has 
been taken away. The Counsel argued that the Honorable Court 
CRP.No.193/2013 etc 
50 
may 
lay 
down 
parameters 
of 
exercise 
of 
such 
powers. 
Appointments made under this section may then be subjected to 
judicial review, but this power cannot be taken away in its entirety. 
The power should be exercised in terms of the judgment given in 
Ehsanullah’s case (1993 PLC (CS) 937). The Counsel submitted 
that pronouncement on the power under section 24 should be 
revisited and the Court should also revisit the finding that 
absorption can only be made under Rule 9-A, keeping in mind 
Rule 4(3) of the Sindh Public Service Commission Function Rules. 
 
CRL.R.P.40 of 2014 
Ata Muhammad Memon v. Chief Secretary, Sindh 
 
 
(In person) 
91.   
The Petitioner appeared in person and submitted that 
on 04.08.1987, he was appointed in KDA as Assistant Engineer on 
temporary basis. He passed the exam and received training. On 
27.04.1989, the Petitioner was sent on mutual transfer to Public 
Health Engineering and he was posted in Hyderabad. He submitted 
that he has been working for 25 years but he has not been 
promoted. He has been reverted as a result of the judgment. He 
joined KMC, as KDA has been dissolved but they reverted him as 
well.  
 
CRP No. 412 of 2013 
Qamaruddin Sheikh v. Secretary Local Govt. Sindh etc  
by Mr. M. Shoaib Shaheen, ASC 
 
 
92.   
The learned Counsel, Mr. Shoaib Shaheen, contended 
that on 13.09.1989, the Petitioner was initially appointed as Land 
Officer in BS-16 in Taluqa Municipal Corporation, Hyderabad. 
Subsequently, on 01.12.1991 he was promoted as Deputy 
Management Land Officer to BS-17. On 24.08.2002, he was 
CRP.No.193/2013 etc 
51 
promoted as Taluqa Officer Regulation (BS-18). Under Sindh Local 
Government Ordinance 2001, Hyderabad MC was abolished. Local 
Government Board was constituted under the Ordinance and the 
Petitioner was posted as TMO, Orangi Town on 08.12.2003 by the 
Board. He was absorbed in BS-18 in Sindh Council Unified Grade 
Service with the approval of the CM, Sindh under Rule 9(1). The 
Counsel contended that the Petitioner was not a Civil Servant 
either before absorption or afterwards, therefore the judgment does 
not apply to him. Employees of the Councils are not Civil Servants. 
The Acts and the Ordinances that have been struck down by the 
judgment under review were relatable to Civil Servants and cadre 
posts. The matter involving non-Civil Servants and non-cadre 
posts was not before the Honorable Court and the findings in the 
judgment will not apply to them.  
 
Crl.M.A No.374 of 2014 in Crl.RP No.72 of 2013  
on behalf of Petitioner No. 6 Abu Bakr 
by Mr. M. Shoaib Shaheen, ASC  (to Check) 
 
93.   
The learned Counsel submitted that the Petitioner was 
held to be nominated in excess of the quota. The judgment under 
review provided that only officers up to Serial No.12 of the list were 
validly nominated. The Petitioner was at No. 13 on the list. He 
submitted that meanwhile, two officers placed above him on the 
list have been promoted. The learned Counsel submitted that the 
process of nomination has not been declared invalid and only the 
nominations in excess of the quota have been so declared, 
therefore, the Petitioner should have been nominated now when 
two persons above him have been nominated and promoted.  
 
 
 
 
CRP.No.193/2013 etc 
52 
Crl.R.P. No.41 of 2014 
Ali Murad Abro vs. Chief Secretary, Sindh  
(In person)  
 
94.   
On 28.07.1987, the Petitioner was appointed in KDA 
as Assistant Engineer (BS-17) on permanent basis. On 26.02.1995, 
He was transferred to C&W Department under mutual transfer 
with Muhammad Amir (Assistant Engineer at C&W) in BS-17. He 
is still serving in BS-17. The Petitioner was repatriated to the Local 
Government Department on 02.07.2013 and was placed at the 
bottom of seniority list. However, Muhammad Amir, who was 
mutually transferred with him, has not been repatriated.  
C.P. No.968 of 2014 
Saleem Ullah v. Province of Sindh thr. Secy. Services, 
General Administration etc 
by Mr. Tariq Mehmood, Sr.ASC 
 
95.   
The learned Counsel Tariq Mehmood contended that 
the Petitioner Saleem Ullah first went to the High Court in respect 
of his grievance. On 25.10.1994, he was appointed as Assistant 
Executive Engineer (AEE) in BS-17 in Karachi Water and Sewage 
Board (KWSB) as a result of due process. In the same year, 
Muhammad Harris was appointed in C&W Department and was 
posted at Larkana as AEE. Harris moved an application to be 
adjusted in Karachi, as he was not comfortable in Larkana. 
Therefore, on 10.01.1995, there was a mutual transfer of Harris 
and Saleem Ullah. They were both appointed in the same grade 
and the same post and they had the same qualification. Chief 
Secretary approved the transfer in relaxation of rules on 
11.07.1995 as both Harris and Saleem Ullah were absorbed. The 
Petitioner passed the promotion exams but he is still serving in 
BS-17. Muhammad Harris was subsequently promoted to BS-18 in 
CRP.No.193/2013 etc 
53 
KWSB and now he is appointed somewhere else. The Counsel 
submitted that the Petitioner did not initiate the matter of transfer. 
He further submitted that he was not a Civil Servant but became 
one when he was absorbed.  
CRP No.760 of 2013 in Crl.O.P.89 of 2011 
M. Zareen Khan v. Arshad Saleem Hotiana, Chief Secretary 
Sindh etc 
by Mr. M. Aqil Awan, Sr. ASC 
 
96.   
The learned Counsel Mr. M.M. Aqil Awan contended 
that the Petitioner was absorbed from Education Department to 
Revenue Department. He wants to be sent back to Education 
Department. Petitioner is not asking for relief, he is just submitting 
that this is wrong.  
 
C.R.P No.394 of 2013 in C.P.71 of 2013 
Muhammad Rafique Qureshi v. Province of Sindh  
by Mr. Baz Muhammad Kakar, ASC  
 
97.   
The learned Counsel Mr. Baz Muhammad Kakar 
contended that the Petitioner was appointed as Revenue Officer. 
He was then appointed Deputy Commissioner and was granted out 
of turn promotion for eliminating encroachment in Port Qasim. His 
out of turn promotion was withdrawn as a result of the impugned 
judgment.   
 
 
 
NOTICE UNDER ORDER XXVII-A (1) OF CPC 
98. 
 
Before adverting to the other issues raised by the 
learned Additional Advocate General Sindh and the Petitioners’ 
Counsel, we intend to first take up the contentions of M/s Syed 
Iftikhar Hussain Gillani, Muhammad Munir Piracha and Raja 
Muhammad Ibrahim Satti, Sr. ASCs that the Constitution Petitions 
No.21/2011, 21/2013, 23/2013 and 24/2013 filed by Dr. Nasim-
ul-Ghani and others ought to have been dismissed for want of 
CRP.No.193/2013 etc 
54 
notices under Order XXVIIA (1) of the CPC to the Advocate General 
Sindh. We have noticed that the Constitution Petition No.71/2011 
was fixed in Court on 4.11.2011 when this Court ordered notices, 
as required under Order XXVIIA (1), not only to the Advocate 
General Sindh, but also to the learned Attorney General for 
Pakistan.  Even in the Constitution Petitions No.21, 23 and 24 of 
2013, filed subsequently, notices were waived on behalf of the 
Advocate General Sindh. In response to the referred notices, the 
Advocate General Sindh did appear and assisted this Court 
throughout the proceedings. For the aforesaid reasons, the 
contention of the learned Counsel on the non-issuance of the 
notices to the Advocate General Sindh on the subject Constitution 
Petitions is without substance.   
 
MAINTAINABILITY OF THE CONSTITUTION PETITIONS BY 
WHICH THE IMPUGNED LEGISLATIVE INSTRUMENTS WERE 
CHALLENGED.  
 
99. 
 
The learned Additional Advocate General Sindh as well 
as the other learned Counsel for the Petitioners have objected to 
the maintainability of the Constitution Petitions under Article 
184(3) of the Constitution, inter alia, on the ground that in the 
aforesaid 
Petitions, 
the 
Petitioners 
have 
raised 
individual 
grievances in regard to their seniority and promotions, which 
under the service laws are not construed as ‘vested right’ of a Civil 
Servant. Their next argument was that, if at all, any right of the 
Petitioners is impaired, they could have approached the Sindh 
Service Tribunal for redressal of their grievances. Similar 
arguments were advanced by the learned Additional Advocate 
General and some of the other Counsels opposing the Constitution 
Petitions at the time of hearing which were attended to and in para 
CRP.No.193/2013 etc 
55 
114 of the impugned judgment, it was concluded that the Petitions 
under Article 184(3) of the Constitution were maintainable.    
100.  
The Constitution gives protection to Civil Servants 
under Articles 240 and 242, which relate to formation of service 
structure. Pursuant to Article 240(b), the Sindh Provincial 
Assembly has enacted the Sindh Civil Servants Act 1973. This 
Court, in exercise of its Constitutional jurisdiction under Article 
184(3) of the Constitution, can examine the vires of an enactment 
either on its own or on an application or petition filed by a party. 
The requirement of Article 184(3) of the Constitution is that if this 
Court considers that a question of a public importance with 
reference to the enforcement of any of the fundamental rights 
conferred by Chapter I of Part II is involved,  it has the jurisdiction 
to pass appropriate orders not withstanding that there might be an 
alternate remedy. The word ‘consider’ used in the Sub-Article (3) of 
Article 184, relates to subjective assessment of this Court. The 
Supreme Court is the final authority upon the matters affecting 
judicial determination on the scope of Constitutional provisions. 
Once the Supreme Court arrives at the conclusion that a question 
of public importance having nexus with the fundamental rights 
guaranteed by the Constitution has been raised, the exercise of its 
jurisdiction under Article 184(3) cannot be objected to either by the 
Government or by any other party.  
101.  
The perception that a Civil Servant can only seek 
redressal of his grievance from the Tribunal or from any other 
forum provided by the Civil Servants Act, is not correct. A Civil 
Servant, being a citizen of this country, equally enjoys the 
fundamental rights conferred by Chapter 1 of Part II of the 
CRP.No.193/2013 etc 
56 
Constitution.  We, while examining the contentions made during 
the hearing of the Constitution Petitions, have dealt in detail with 
the issue as to whether any rights of the Civil Servants were 
offended 
by 
the 
impugned 
legislative 
instruments 
in 
the 
Constitution Petitions. We, after hearing the parties, concluded 
that the impugned legislative instruments were violative of Articles 
240(b), 242(1B), 4, 8, 9 and 25 of the Constitution. We have also 
observed in the judgment under review that the issues raised in 
the Constitution Petitions were of public importance and had far 
reaching effects on service structure of the Province, therefore, the 
Petitions 
under 
Article 
184(3) 
of 
the 
Constitution, 
were 
maintainable before this Court and hence the same were 
entertained.  
102.  
The Petitioners in the Constitution Petitions had 
challenged the vires of the legislative instruments, raising the 
question of public importance relating to the rights of the Civil 
Servants in Sindh. Such issues did cover the parameters, which 
attract the jurisdiction of this Court under Article 184(3) of the 
Constitution and, therefore, following the dictum in the cases of 
Watan Party and others v. Federation of Pakistan  (PLD 2012 
SC 292) and Tariq Aziz-ud-Din and others (2010 SCMR 1301) it 
was held that the Petitions were maintainable. The issue of 
maintainability of the Petitions cannot be raised either by the 
Additional Advocate General or by the Petitioners’ Counsel once 
this Court, while passing the judgment under review, has held that 
the Petitions were maintainable.  We for the aforesaid reasons, 
hold that the contentions of the learned Additional Advocate 
General and other Counsel on the issue of maintainability of the 
Petitions are without force.  
 
CRP.No.193/2013 etc 
57 
 
 
 
RULE 9(1) OF APT RULES.  
103.  
In order to appreciate the contentions of the learned 
Additional Advocate General and the Petitioners’ Counsel as to 
whether the Chief Minister/Competent Authority is empowered 
under Rule 9(1) of the Sindh Civil Servants (Appointment, 
Promotion and Transfer) Rules, 1974 to absorb the beneficiaries 
from different organizations to Provincial Service or Cadre or post, 
we need to examine the entire scheme of the Sindh Civil Servants 
Act, 1973 [hereinafter referred to as “the Act’]. The Sindh Civil 
Servant Act 1973 has been enacted pursuant to the provisions of 
Article 240 of the Constitution.  
104.  
Section 2 (1)(b) defines the term ‘Civil Servant’ and 
excludes under sub-section (i) a person who is on deputation to the 
Province from the Federation or any other Province or Authority. 
Section 2(1)(d) defines the term ‘Initial Appointment’. The initial 
appointment as per the definition given under the Act means 
‘Appointment made otherwise than by Promotion or Transfer’. 
According to Section 2(1)(g), the term ‘prescribed’ means  
‘prescribed by rules’. Section 2(1)(i) defines ‘Selection Authority’, 
which 
includes 
the 
Sindh 
Public 
Service 
Commission, 
a 
Departmental 
Selection 
Board, 
a 
‘Departmental 
Selection 
Committee’ or other ‘Authority or Body’ on the recommendations 
of, or in consultation with which, any appointment or promotion, 
as may be prescribed, is made.    
105.  
Section 
5 
of 
the 
Act 
provides 
the 
mode 
of 
appointments to a Civil Service of the Province or a Civil Post in 
connection with the affairs of the Province to be made in the 
prescribed manner by the Government or by a person authorized 
CRP.No.193/2013 etc 
58 
by it on its behalf. Section 6(1) of the Act provides probation period 
for a Civil Servant, who is initially appointed to a service or post 
referred to in Section 5. Section 6(2) is an extension of initial 
appointment. Section 6(3) prescribes examinations, tests or 
courses for a Civil Servant, which he requires to qualify before the 
expiry of his probationary period. In case he fails to complete his 
required qualification during probation satisfactorily, he would be 
discharged in terms of Section (6)(3)(a) or under (b) of the Act, and, 
if he is appointed to such service or post by promotion or transfer, 
he would be reverted to the service or post from which he was 
promoted or transferred.   
106.  
Section 7(1) of the Act speaks of confirmation of the 
Civil Servant on his satisfactory completion of the probation 
period. Section 7(2) of the Act relates to a Civil Servant promoted to 
a post on a regular basis. The Civil Servant falling under this 
category would also be eligible for confirmation on his rendering 
satisfactory service for the prescribed period.  
107.  
Section 8 of the Act provides that for proper 
administration of a service, cadre or post, the appointing authority 
shall cause a seniority list of the members for the time being of 
such service, cadre or post to be prepared. Section 9 of the Act 
provides 
that 
a 
Civil 
Servant 
possessing 
such 
minimum 
qualification as may be prescribed, shall be eligible for higher post 
for the time being reserved under the Rules for Departmental 
Promotion. Section 10 speaks of posting and transfer of the Civil 
Servants within or outside the Province with the limitations 
contained therein. Section 24 of the Act authorizes the 
Government to deal with the case of a Civil Servant as it appears 
CRP.No.193/2013 etc 
59 
just and equitable, whereas Section 26 empowers the Government 
to frame Rules for regulating the service of a Civil Servant.    
108.  
In exercise of powers conferred under Section 26 of the 
Act, the Sindh Government, besides other Rules, has also framed 
Rules called “The Sindh Civil Servants (Appointment, Promotion & 
Transfer) Rules, 1974” [hereinafter referred to as “the Rules”]. 
Rule 3(1) of the Rules provides for appointment to a Civil Service or 
a post by three modes (i) by initial Appointment, (ii) Appointment 
by promotion and (iii) Appointment by transfer.  
109.  
Rule 3(2) provides the method of appointment, the 
qualifications and other conditions applicable to a post, laid down 
by the department concerned in consultation with Services and 
General Administration Department (S&GAD). Rule 4(1) provides 
the description of the Authority competent to make appointments 
to various posts.  Rule 5(1) empowers the department or the 
Government to constitute Departmental Promotion Committees 
and or Departmental Selection Committees in consultation with 
S&GAD. Part-II of the Rules deals with the appointments by 
promotion and transfer whereas, Part III of the Rules deals with 
the initial appointments. 
110.  
Rule 6(1) authorizes the Government to constitute a 
Provincial Selection Board, which would recommend appointments 
by promotion or transfer of the Civil Servants in BS-18 and above 
carrying special pay. Whereas, Rules 7(1),(2) & (3) deal with 
appointments by promotion and/or transfer of the Civil Servants 
without special pay on merits, on the recommendations of the 
appropriate Departmental Promotion Committee or the appropriate 
Selection Board constituted by the Government as the case may 
CRP.No.193/2013 etc 
60 
be. Rule 8 mandates that Departmental Promotion Committee or 
the Provincial Selection Board shall consider the qualifications, 
tenural limitations and requisite conditions laid down for 
promotion or transfer of a Civil Servant. Rule 9(1) of the Rules 
authorizes 
the 
government/competent 
Authority 
to 
make 
appointments by transfer of the Civil Servants on regular basis 
mentioned in the table given in the Rule, which comprises of 3 
columns. Column 2 of the table deals with the officers who could 
be transferred, column 3 of the table mentions the Authority 
competent to order transfer and column 4 of the table mentions 
the Department notifying such transfer.  
111.  
Keeping in mind the aforesaid scheme provided by the 
Act, we would like to examine the scope of Rule 9(1) of the Rules. 
In the first place, the definition given by Section 2(1)(d) of the Act 
clearly manifests that initial appointment is an appointment made 
otherwise than by promotion or transfer. This definition has to be 
read with Part-II of Rule 6(A) of the Rules, which relates to 
appointments by promotion or transfer.  Section 5 of the Act, 
which deals with the initial appointment to a Service or a Civil 
Post, has to be read with Section 8(1) where it is provided that for 
proper administration of service or cadre, the appointing authority 
is required to prepare a seniority list with the categories given in 
the Section based on the recruitment Rules, which are framed in 
consultation with S & GAD under Section 26 of the Act.  The 
relevant Rule in this respect is Rule 3. In other words, Section 8 of 
the Act compartmentalizes the different classes of Civil Servants by 
dividing them in three categories i.e. service, cadre or post as 
prescribed by recruitment Rules of their departments.  This 
distinction of class has been specifically introduced by the 
CRP.No.193/2013 etc 
61 
legislature with the sole object that if a person is initially appointed 
in one service or cadre or post, his progression would remain in 
the same cadre, service or post. His vertical growth or progression 
shall remain within his class by compartmentalizing the Act which 
regulates his terms of service. What is more interesting is that 
Section 5 of the Act does not vest any discretion in the Government 
to relax the Rules for change of cadre. The language of Section 5 is 
very clear and mandates that the appointments to the Civil Service 
or post shall be made in the prescribed manner.  
112.  
Appointment by promotion as used in Rule 6(A) is the 
consequence of initial appointment. Likewise, appointment by 
transfer is also the consequence of initial appointment. The 
appointment by promotion is made within the cadre or service or 
post and, therefore, it does not require any interpretation. The 
appointment by transfer can only be ordered if the Civil Servant is 
eligible and qualifies for his transfer under Rule 3(2) of the Rules of 
the department to which he is to be transferred, read with Rules 4, 
7 and 8 of the Rules, which prescribe conditions laid down for 
such appointments by transfer to such posts. A Civil Servant who 
is to be appointed by transfer has to appear before the 
Departmental Promotion Committee or the Provincial Selection 
Board which will consider his eligibility, qualification and such 
other conditions applicable to the post as laid down in the 
recruitment rules of the department to which his transfer is to be 
ordered.  
113.  
It is contended by some of the learned Counsel that 
the term ‘person’ used in Rule 9(1) of the Act would mean that the 
Government or the competent authority can order appointment by 
CRP.No.193/2013 etc 
62 
transfer of any person from anywhere within or outside the Act by 
appointing him to any post of equivalent basic scale.  We are not 
persuaded by this argument of the learned Counsel for more than 
one reason. The word ‘person’ has not been defined either in the 
Act or in the Rules. It has to be interpreted with the other rules 
relatable to the appointment by promotion or by transfer. Rule 9(1) 
speaks of appointment by transfer to be made from amongst the 
persons holding appointments on regular basis mentioned in 
column 2 of the table given under the Rule. Therefore, the word 
‘person’ as used in Rule 9(1) would relate to the officers, who are 
Civil Servants and mentioned in column 2 of the table given under 
Rule 9(1). The word ‘person’ could not be given an ordinary 
meaning beyond the scheme of the Act and Rules of 1974.   
114.  
We, after looking at the scheme of the Act and the 
Rules framed thereunder, are clear in our minds that Rule 9(1) 
does not empower the Government or Selection Authority defined 
under the Act to appoint a Civil Servant or any other person by 
transfer to any other cadre, service or post without his eligibility, 
qualifications and the conditions laid down under Rules 3(2), 4, 6, 
and 8 of the Rules.  Section 8 of the Act makes class of Civil 
Servants for proper administration and such class is not 
interchangeable at the whims of the Selection Authorities and/or 
the Government to extend favours to their blue eyed. There is no 
discretion given under Section 5 of the Act to appoint any person 
in Civil Service against a Civil Post in the manner other than 
prescribed by the Rules. Rule 9(1) does not confer permanent 
status on Civil Servant on his appointment by transfer nor it 
contemplates his absorption in the transferee Department as a 
consequence of his appointment. There is neither procedure nor 
CRP.No.193/2013 etc 
63 
mechanism provided under the Act or the Rules to treat 
appointment 
by 
transfer 
as 
absorption 
in 
the 
transferee 
department. Rule 9(1) cannot be used as a tool to allow horizontal 
movement of a civil servant from his original cadre to another 
cadre against scheme of the Act and the Rules of 1974. The term 
‘transfer’ has to be interpreted in its common parlance and is 
subject to the limitations contained in Rules 3, 4, 6, 7 and 8 of the 
Rules 1974. Any appointment by transfer under Rule 9(1) has to be 
for a fixed term, and, on completion of such term, the Civil Servant 
has to join back his parent department.  The word ‘appointment’ 
used in the Rule 6(A) cannot be equated with the word ‘initial 
appointment’ used in the Act which excludes appointment by 
transfer and promotion. Therefore, restricted meaning has to be 
given to the expression ‘appointment by transfer’. For the aforesaid 
reasons, we are clear in our minds that the concept of absorption 
of a Civil Servant and/or Government servant is foreign to the Act 
as well as Rule 9(1) of the Rules. Rule 9(1) does not permit transfer 
of non-Civil Servant to a non-cadre post or to a cadre post.  We, in 
para 126 of the judgment under review, have not discussed the 
scope of Rule 9(1) as neither the Government nor any of the parties 
appearing before us had taken the plea that they were appointed 
by transfer and absorbed under Rule 9(1) of the Rules. However, 
we had recorded the following finding on Rule 9(1) which is 
reproduced : - 
“No Civil Servant of a non-cadre post can be 
transferred out of cadre to be absorbed to a cadre 
post which is meant for recruitment through  
competitive process. A Civil Servant can be 
transferred out of cadre to any other department of 
the Government subject to the restrictions contained 
under Rule 9(1) of the Rules of 1974.”  
 
CRP.No.193/2013 etc 
64 
115.  
Now, after we have scanned the entire scheme of the 
Act and the Rules framed thereunder, we are clear in our minds 
that the aforesaid finding was in accord with the Act which has 
been promulgated pursuant to Articles 240 and 242 of the 
Constitution. We further clarify that even a Civil Servant cannot be 
transferred to any other cadre, department, post or service unless 
he is eligible for such post, in terms of the Rules 3(2) and qualifies 
the test of Rules 4, 6, 7 and 8 of the 1974 Rules as discussed 
hereinabove.  
116.  
The term ‘transfer’ used in Rule 9(1) has not been 
defined either in the Act or the Rules of 1974, therefore, we have to 
attach an ordinary dictionary meaning to it. The ordinary 
dictionary meaning of the term ‘transfer’ means ‘to move from one 
position to another.’ If this meaning is attached to the term 
‘transfer’ used in Rule 9(1), it would lead to mean an ordinary 
posting of a Civil Servant from one position to another. Such 
transfer, however, cannot be construed to qualify the term 
‘absorption’ as has been contended by the learned Counsel, which 
term is alien to the Act and the Rules. Therefore, the appointment 
by transfer under Rule 9(1), as has been interpreted by us, would 
be confined to the parameters laid down by the scheme of the Act 
and the Rules of 1974. 
 
 
 
SCOPE OF RULE 9-A OF THE APT RULES 
117.  
We have heard the learned Counsel representing 
beneficiaries on the scope of Rule 9-A of the Rules. Under Rule        
9-A, a person who has been rendered surplus on account of 
abolition of his post, in any Office or Department of the 
CRP.No.193/2013 etc 
65 
Government 
or 
autonomous 
body 
and/or 
on 
account 
of 
permanently taking over of the administration of such autonomous 
body wholly or partially by the Government, can be appointed by 
transfer to any post in a Department or Office in the Government 
subject to his eligibility and qualifications as laid down under Rule 
3(2) for appointment to such Office. It is further provided under 
Rule 9-A of the Rules that such person shall be appointed to a post 
of equivalent or comparable basic scale and, in case such post is 
not available, then to a post of lower Basic Scale. Rule 9-A of the 
Rules provides further restriction to the seniority of such person to 
the post by reckoning his seniority at the bottom of the seniority 
list from the date of such appointment, with a further rider that his 
previous service, if not pensionable, shall not be counted towards 
pension and gratuity.  We have dealt with the aforesaid issue in 
para 116 of the judgment under review and have set parameters of 
Rule 9-A of the Rules in para 126 of the judgment under review.      
118.  
After hearing the arguments of the learned Counsel for 
the petitioners, we need to further clarify the scope of Rule 9-A of 
the Rules.  Rule 9-A of the Rules has been introduced with the 
object to accommodate the persons who are rendered surplus by 
abolition of their posts or the organization in which they were 
working has been taken over by the Sindh Government. This Rule, 
as has been noticed, cannot be used as a tool to accommodate a 
person by abolishing his post with an object to appoint him by 
transfer to a cadre or service or post in deviation of Rule 3(2), 
which is a condition precedent for appointment to such post. In 
order to exercise powers under Rule 9-A of the Rules, there has to 
be some justification for abolition of the post against which such 
person was working. This justification should come from the 
CRP.No.193/2013 etc 
66 
Department and or organization which shall be in consultation 
with the S&GAD and approved by the Competent Authority. Rule 
9-A of the Rules does not permit appointment by transfer of a non-
Civil Servant to any other Department and/or organization 
controlled by the Government to a post which restricts the transfer 
under Rule 3(2) of the Rules. A person can only be appointed by 
transfer under Rule 9-A, if he has the eligibility, matching 
qualifications, expertise coupled with the conditions laid down 
under Rule 3(2) for appointment to such post. The Competent 
Authority under Rule 9-A of the Rules while ordering appointment 
by transfer cannot lose sight of the conditions prescribed under 
Rule 4, 6(A) and 7. Therefore, any appointment by transfer under 
Rule 9-A of the Rules in violation of the aforesaid conditions is a 
nullity, and the conclusion reached by us in para 126 of the 
judgment under review has to be read in addition to the findings 
recorded herein above.    
 
 
 
ABSORPTION 
 
 
119.  
The learned Additional Advocate General, as well as 
the Counsel representing the Petitioners had argued that the 
Competent Authority had the powers under Rule 9(1) of the Rules 
to absorb any person from within and/or outside the Province 
through appointment by transfer. We have already dealt with the 
scope of Rule 9(1) of the Rules, which permits appointment by 
transfer subject to the conditions prescribed therein. It does not 
permit absorption from one cadre to another cadre. The Competent 
Authority in the cases of the Petitioners has ordered absorption by 
relaxing the rules, which is in deviation of the scheme of the Act 
framed pursuant to the dictates of Article 240, read with the 
qualifications incorporated in the Rules of 1974. We may observe 
CRP.No.193/2013 etc 
67 
that Section 5 of the Act does not give any discretion to the 
Selection Authority to bypass the restriction by relaxing the Rules. 
If such discretion is allowed to prevail, it would destroy the fabric 
of Civil Service, which is protected by the mandates of Articles 240 
and 242 of the Constitution. It is also a misconception that Rule  
9-A permits transfer of a non-Civil Servant to a Cadre, Service or 
Post meant for a Civil Servant, recruited in the Cadre or Service or 
Post after competitive process. Such an appointment by transfer in 
the nature of absorption would only be permissible, if the pre-
conditions laid under Rule 9-A of the Rules are met.  
120.  
At the time of hearing of Petitions No.71/2011 and 
others the learned Additional Advocate General, as well as the 
Petitioners appearing in these Petitions, attempted to justify 
absorption on the basis of legislative instruments, which were 
declared unconstitutional. In these review proceedings, the 
Petitioners have changed their stance claiming their absorption on 
the basis of Rule 9(1) of the Rules. We have separately dealt with 
the scope of Rule 9(1) of the Rules. Under Rule 9(1), appointment 
by transfer would only mean an ordinary transfer from one post to 
another post, subject to the restrictions contained in the Rules of 
1974. Neither a person can be absorbed under these Rules nor a 
Civil Servant or non-Civil Servant or a deputationist could be 
allowed to travel horizontally outside his cadre to penetrate into a 
different cadre, service or post through an appointment by 
transfer. Rule 9(1) cannot override the provisions of Section 8 of 
the Act, which have been introduced by the Legislature for proper 
administration of Service law. For the aforesaid reasons, in 
addition to our findings recorded in the judgment under review, we 
CRP.No.193/2013 etc 
68 
are of the considered view that the Petitioners have failed to make 
out any justifiable ground to seek review of the judgment. 
 
 
 
ABSORPTION IN UNIFIED GROUP 
 
CRP.409/2013 Mr. Aqail Awan for the Petitioner 1-3
 
Crl.R.P.81/2013 & CRP.412/2013 
 
121.  
It was contended by M/s Aqil Awan, Shoaib Shaheen, 
Muhammad Munir Peracha and Tariq Mehmood, learned ASCs, 
that the impugned judgment is only applicable to Civil Servants 
and does not cover non-civil servants. We, with respect, disagree 
with the contentions of the learned Counsel. The impugned 
judgment would be equally applicable to the Government Servants, 
employees 
of 
any 
statutory 
or 
non-statutory 
organization 
controlled by the Sindh Government, who were wrongly absorbed 
in 
different 
Cadres, 
Services, 
Posts 
of 
the 
Government 
Departments, Statutory Organizations against their service Rules. 
The contention of the learned Counsel was that the Petitioners 
were non-Civil Servants and were absorbed from different 
organizations to Sindh Councils Unified Grades Service under Rule 
9(1) of the Rules of 1974, read with Rule 12(5) of the Unified 
Grades Service Rules 1982. We have already held that the power to 
appoint by transfer under Rule 9(1) would only extend to a Civil 
Servant. The Sindh Councils Unified Grades Service Rules 1982 
regulate the terms and conditions of the employees appointed 
therein. Rule 3(1) provides composition of Service, whereas Sub-
Rule (2) of Rule 3 spells out its Sub-Branches. Rule 3(4) places a 
restriction on the members for transfer from one Branch or Sub-
Branch to another Branch or Sub-Branch within the service group.  
Rule 12 of the (Unified Group) Service Rules deals with the 
seniority of the members. Rule 12(5)(a) confers powers of transfer 
CRP.No.193/2013 etc 
69 
by Appointment on the competent authority. The Petitioners, who 
were not members of the Unified Services and were wrongly 
absorbed in the Service of Unified Group, in deviation of the 
Service Rules of 1982 cannot be allowed to continue in the Unified 
Services Group. The Chief Minister or the Board cannot induct any 
stranger in the service of Unified Group either by exercising powers 
under Rule 9(1) of the Rules of 1974 or by Rule 12(5) of the Rules 
of 1982. Any such induction is against the recognized norms of 
Service law and, therefore, the Petitioners were liable to be 
repatriated to their parent departments forthwith in terms of the 
judgment under review. ‘Absorption’ of the Petitioners under the 
garb of ‘Appointment by Transfer’ in the Unified Services Group 
has directly affected the rights of the employees in the service, 
guaranteed under Articles 4 and 9 of the Constitution. Such act on 
the part of the Chief Minister or the Board had circumvented the 
very framework of the Service Rules of 1982 by introducing a 
parallel system based on discrimination and favourtism, which the 
law does not recognize. 
 
 
 
 
OUT OF TURN PROMOTIONS. 
122.  
The issue of out of turn promotions has been dealt 
with by us in detail in the judgment sought to be reviewed and we 
reached the conclusion that it was violative of Articles 240, 242, 
4,8,9 and 25 of the Constitution.  Mr. Adnan Iqbal Chaudhry, 
learned ASC has contended that Section 9-A of the Act has not 
been struck down by this Court, while declaring the out of turn 
promotions as un-constitutional. We are mindful of this fact as we 
have held that the Competent Authority can grant awards or 
rewards to the Police Officers, if they show act of gallantry beyond 
CRP.No.193/2013 etc 
70 
the call of duty. However, we had struck down the very concept of 
‘out of turn promotion’ being violative of Constitution for the 
reasons incorporated in paras 158 to 164 of the judgment under 
review.  
123.  
The contention of Mr. Adnan Iqbal Chaudhry, learned 
ASC was that the provisions of Section 9-A of the Act could not be 
interpreted to exclude other categories of Civil Servants except 
police force. According to him any Civil Servant other than the 
Police Officer, can also perform gallantry act beyond the call of 
duty. We are not persuaded by the arguments of the learned 
Counsel for the Petitioner as the terms ‘Gallantry’ and ‘Beyond the 
Call of Duty’ have to be interpreted by invoking the Rule of 
‘ejusdem generis’. The expression ‘Gallantry’ used in Section 9-A of 
the Act has not been defined either in the Act or in the Rules, 
therefore, we have to give to term ‘Gallantry’ the ordinary 
dictionary meaning while interpreting it.  The term ‘Gallantry’ 
means ‘Brave, Courageous, valiant, fearless, bold and daring’. All 
these adjectives directly relate to the nature of duty which a Civil 
Servant performs. These adjectives can only be attached to security 
personnel. Therefore, we can safely hold that the term ‘Gallantry’ 
as used in Section 9-A of the Act could only apply to Police 
Personnel and award and reward on their gallantry performance be 
conferred upon them and not to other species of Civil Servants. 
However, such award or reward should be given under a 
transparent process after objective assessment of their velour by a 
committee, in a just manner under the prescribed Rules.  
124.  
Petitioners in Crl.R.P.No.74 of 2013, Engineers by 
profession, appearing in person have contended that they were 
CRP.No.193/2013 etc 
71 
given out of turn promotions in the year 2004, as they made efforts 
to provide water to the persons at the tail, and in discharge of their 
duties they were exposed to criminal prosecution. This is the 
normal duty of a Civil Servant of the Irrigation Department and it 
cannot be construed to be a Gallantry act beyond the call of duty.  
Besides, we have already held that grant of out of turn promotion 
is unconstitutional, therefore the Petitioners’ claim does not merit 
acceptance.   
CRL. R.P.84/2013 
Khurram Waris vs. Chief Secretary Sindh etc 
 
125.  
Mr. Irfan Qadir, learned ASC appearing on behalf of 
Khurram Waris (in Crl. Review Petition No.84/2013), has contended 
that the Petitioner was granted out of turn promotion for his 
gallantry act beyond the call of duty by risking his life and 
displaying extraordinary bravery. We are provided an extract from 
his service profile by the Sindh Government. According to the 
Service profile of the Petitioner, he is a Sub-Inspector in BS-14 and  
was granted out of turn promotion three times; (i) from Sub-
Inspector to the rank of Inspector in BS-16, (ii) from Inspector to 
the rank of DSP in BS-17 and (iii) from DSP to the rank of SP in 
BS-18. This Court, after hearing the Sindh Government and other 
parties, had struck down the legislative instruments which gave 
protection to the out of turn promotions by the judgment under 
review, declaring it as unconstitutional.  
126.  
The contention of the learned ASC that the judgment 
of the High Court of Sindh relating to the ‘out of turn promotion’ is 
still in field, therefore, he prayed for formulation of a Committee to 
scrutinize the cases of the Police Officers, who were given out of 
turn promotion, is without substance. We have already declared 
CRP.No.193/2013 etc 
72 
‘out of turn promotion’ as unconstitutional, therefore, after 
recording such findings, the need of forming a Committee under 
Rule 8-B for scrutinizing the cases of Police Personnel is of no 
significance. However, they could be awarded or rewarded 
compensation for their exceptional acts of gallantry.   
127.  
We do support that the morale of the Police personnel 
be boosted as intended in the legislative instruments, which were 
struck down by us and on their exceptional acts of gallantry, they 
should be given awards and rewards on merits; but even this has 
not been done by the Sindh Government. In recent past, a Senior 
Police Officer, who was known for his bravery, has lost his life in 
an attack by the terrorists and his family was not offered 
compensation publically. Likewise, another senior police officer, 
who is also known for his courage, in combating terrorism in 
Karachi, was attacked by the terrorists and had received serious 
injuries but survived. The Sindh Government has not so far 
publically announced a reward for him, which is pathetic. In fact 
in para 164 of the judgment under review, we had directed the 
Sindh Government to constitute a Committee under Rule 8-B, to 
evaluate the performance of the Police Officers upon whom the 
proposed awards or rewards have to be bestowed. We recommend 
that the Police Officers, who risk their lives in the given most 
unstable conditions of Karachi, should be given adequate 
protection and in case, where the Police Officers while fighting 
against terrorism have lost their lives, their families should be 
looked after by the Sindh Government. The Sindh Government 
should adopt the policies of the Armed forces, where in such like 
cases, the personnel and their families are taken care of under a 
prescribed procedure.     
CRP.No.193/2013 etc 
73 
128.  
For the aforesaid reasons, which we had already 
recorded in the judgment under review, we are not persuaded by 
the contentions of the learned ASC to change our earlier view. This 
Review Petition merits dismissal. 
 
WHETHER THE JUDGMENT UNDER REVIEW  
OUGHT TO HAVE BEEN MADE PROSPECTIVE 
 
129.  
The Learned Additional Advocate General Sindh and 
almost all the Counsels representing the petitioners have 
contended that the Judgment under review ought to have been 
applied prospectively. The learned Counsels have jointly contended 
that the benefits accrued to the Petitioners by the legislative 
instruments, which were struck down by this Court, could not 
have been withdrawn as their rights were protected by the 
principles of locus poenitentiae. Mr. Irfan Qadir, learned ASC, has 
contended that the judgment is in personam and would not apply 
to his clients.  Syed Iftikhar Hussain Gillani, learned Sr. ASC has 
contended that judgments always apply prospectively and not 
retrospectively. In this regard he has placed reliance on the case 
‘Regarding Pensionary Benefits of the Judges of Superior 
Courts from the date of their respective retirements, 
irrespective of their length of service as such’ (PLD 2013 SC 
829).  We have taken note of such contentions of the learned 
Counsels at the time of hearing of the original Petitions, and were 
not persuaded for reasons stated in paras 174 and 175 of the 
judgment under review.  Now, it is a settled law of this Court that 
no right or obligation can accrue under an unconstitutional law. 
Once this Court has declared a legislative instrument as being 
unconstitutional, the effect of such declaration is that such 
legislative instrument becomes void ab initio, devoid of any force of 
CRP.No.193/2013 etc 
74 
law, neither can it impose any obligation, nor can it expose anyone 
to any liability.  
130.  
In the case in hand, the benefits extended to the 
Petitioners through the impugned legislation, were not only 
violative of law but were also declared ultra vires of the 
Constitution. In such like circumstances, the benefits, if any, 
accrued to the Petitioners by the said legislative instruments shall 
stand withdrawn as if they were never extended to them.  The 
judgment relied upon by Syed Iftikhar Hussain Gillani is 
distinguishable on facts.  Under the said judgment, this Court had 
re-visited the earlier judgment of this Court titled as Accountant 
General Sindh and others vs. Ahmed Ali U. Qureshi and 
others (PLD 2008 SC 522)  by which the retired Judges were 
granted pensionary benefits.  In the said case, it was held that the 
pensionary benefits granted to retired Judges were violative of the 
scheme and as such the judgment was declared as per incurium, 
declaring further that no pensionary benefits could be granted to 
any retired Judge, unless he serves for five years in office. In the 
present proceedings, this Court has struck down the legislative 
instruments by which benefits were extended to a class of persons, 
in complete disregard of the service structure mandated by the 
provisions of Articles 240 and 242 of the Constitution. Through the 
legislative instruments, which were struck down by this Court, 
undue favours were extended to a few individuals, for political 
considerations against the mandate of the Act and the recruitment 
Rules framed thereunder. Such instruments were held to be 
violative of Articles 4, 8, 9, 14 and 25 of the Constitution. Through 
these legislative instruments, many of the Petitioners were 
absorbed and/or given out of turn promotions or back-dated 
CRP.No.193/2013 etc 
75 
seniority, depriving other meritorious Civil Servants of their 
seniority and smooth progression in career. A substantial number 
of unfit and unmeritorious Officers were thus absorbed/   
promoted out of turn/given back-dated seniority in important 
cadres, services and posts by extending undue favors by the 
Authorities, skipping the competitive process.  Such absorptions 
etc, which were not permissible under the Civil Servants Act, had 
practically obliterated the Constitutional and legal differentiations 
that existed amongst various cadres, posts and services.  We have 
already observed in our judgment that the legislative instruments, 
which were struck down by this Court, had engendered a culture 
of patronage, bringing more politicization, inefficiency and 
corruption in the Civil Service.   
131.  
In such like circumstances, by striking down the 
legislative instruments, the Court was obliged to provide a 
corresponding remedy to the aggrieved Civil Servants who had 
suffered because of the unconstitutional and illegal benefits 
accrued to the beneficiaries of the impugned legislations. As a 
result of the judgment under review, the rights of the meritorious 
Civil Servants as provided under the Constitution and law have 
been restored, ensuring, inter alia, their inter-se seniority and 
legitimate expectations of attaining upper ladder of their careers.  
132.  
We hold that the cases relied upon by Syed Iftikhar 
Hussain Gillani, learned Sr. ASC, and the other learned Counsel 
are distinguishable on facts. In the present case if the contentions 
of the learned Counsel are acdepted then on the one hand the ill-
gotten benefits would receive judicial approval against the 
provisions of the Constitution and Law and, on the other hand, the 
CRP.No.193/2013 etc 
76 
sufferers of the benefits accrued to the Petitioners would be left 
with no remedy or recompense. In other words, the progression 
and career of the meritorious Civil Servants would suffer 
irretrievably, whereas the beneficiaries of unconstitutional and 
illegal measures would thrive and progress their careers 
unimpeded if the judgment is made applicable prospectively. 
Whereas in the case ‘Regarding Pensionary Benefits of the Judges 
of Superior Courts (supra) relied upon by the learned ASC, no one 
will be burdened except the public exchequer.  
 
133.  
This Court, in the case of Dr. Mobashir Hassan and 
others vs. Federation of Pakistan and others (PLD 2010 SC 265), 
while striking down the N.R.O, had directed to withdraw the 
benefits extended to the accused persons under the N.R.O and, 
consequently they were ordered to be retried.  
134.  
The learned Counsel for some of the Petitioners have 
objected to the cut-off date of 1994 for the purposes of application 
of this judgment. We have clarified this fact in our judgment under 
review that this date was provided to us by the learned Additional 
Advocate General, on instructions of S&GAD. We confronted the 
learned Additional Advocate General to satisfy us as to the reasons 
for mentioning the year 1994. He contended that in the original 
Constitution Petition No.D-932/2009 of High Court of Sindh, 
Karachi, filed by Dr. Nasimul Ghani Sahito and others, the 
absorption of the Officers from 1994 onwards was challenged and 
therefore, he, on instructions of the S&GAD, intimated this Court 
that the legislative instruments, which were impugned in 
Constitution Petitions No.71/2011, 21, 23 & 24 of 2013 before this 
CRP.No.193/2013 etc 
77 
Court, extend protection to the Officers absorbed and/or granted 
out of turn promotions or back-dated seniority from 1994 onwards.  
We will not delve into this factual controversy of the cut-off date as 
we believe, we have enunciated the principles in the judgment 
under review strictly in the light of the Constitutional and 
statutory provisions, which are not time bound. 
 
  
MALA FIDE 
135.  
The contentions of the learned Additional Advocate 
General Sindh and some of the Petitioners’ Counsel that the 
judgment under review has attributed mala fide to the Legislature 
is also without substance. No such finding has been recorded in 
the judgment under review. However, one of the Hon’ble Judges of 
the Bench, while concurring with the findings of the judgment 
under review, had added a note wherein it had been maintained 
that in the given circumstances of the case it was difficult to 
attribute bona fide to the legislature. It had been clearly observed 
in that note that mala fide cannot be attributed to the legislature. 
Therefore, the contentions of learned Additional Advocate General 
and Counsel are devoid of any force.   
 
 
 
SCOPE OF SECTION 24 OF THE ACT. 
 
136.  
During hearing of the Review Petitions, we have 
noticed that the competent authority in a large number of cases, 
had 
passed 
orders 
of 
absorptions 
of 
the 
Civil 
Servants/Government Servants/Employees of Autonomous Bodies, 
semi-Autonomous Bodies and Corporations, and had granted them 
back-dated seniority besides the out of turn promotion, by using 
the expression ‘In Relaxation of Rules”. Ex-facie, these powers were 
exercised by the Competent Authority by resorting to Section 24 of 
CRP.No.193/2013 etc 
78 
the Act, which is an enabling provision and confers residuary 
powers upon the competent authority, to redress the grievance of 
an individual in a hardship case.  
 
137.  
The Competent Authority under Section 24 of the Act 
can grant benefit to an individual if it considers it just and 
equitable, without offending and impairing the statutory rights of 
other Civil Servants/Employees. The exercise of powers under 
Section 24 of the Act by the Competent Authority in cases of the 
Petitioners travelled beyond the scheme of the Act, framed under 
the mandate of Articles 240 read with Article 242 of the 
Constitution. The Competent Authority can exercise powers under 
Section 24 of the Act, by relaxing rules, if there is a vacuum in law, 
but such powers cannot be exercised under the garb of the term 
“Relaxation of Rules” with the intent to bye-pass the mandate of 
law for extending favours to a person or an individual, offending 
and imparing the statutory rights of other Civil Servants. The 
Competent Authority, by an executive order, cannot frame Rules in 
exercise of powers under Section 24. The authority conferred 
under Section 24 of the Act is confined to hardship cases, without 
negating the vested rights of the other Civil Servants and/or 
causing prejudice to their interests.  
 
MECHANISM FOR UPGRADATION OF POSTS 
 
138.  
During the hearing of the review petitions, we have 
noticed that the Sindh Government has upgraded certain posts of 
individuals without any mechanism of upgradation to benefit 
them. The expression ‘upgradation’ is distinct from the expression 
‘promotion’ which has not been defined either in the Act or the 
Rules framed there-under, and is restricted to the post and not 
CRP.No.193/2013 etc 
79 
with the person occupying it. The upgradation cannot be made to 
benefit a particular individual in terms of promoting him to a 
higher post or further providing him with the avenues of lateral 
appointment or transfer or posting. In order to justify the 
upgradation, the Government is required to establish that the 
department needs restructuring, reform or to meet the exigency of 
service in public interest. In the absence of these pre-conditions, 
upgradation is not permissible. We have noticed that some of the 
civil servants have been promoted to higher posts against the 
tenural limitations, without qualifying the requisite departmental 
examinations/trainings under the garb of upgradation. Such civil 
servants having not been promoted in accordance with law need to 
be reverted to their substantive ranks/posts which they were 
holding immediately before their upgradation and their seniority 
shall be determined along with their batchmates. The Sindh 
Government shall undertake this exercise and report compliance 
within 4 weeks through the Chief Secretary, Sindh.  
 
 
ABOLITION OF POSTS 
 
139.  
During the hearing of the Review Petitions, we have 
noticed that the Sindh Government has abolished some posts in 
individual cases with the object to accommodate civil Servant or 
Government Servant to appoint him by transfer to a post, service 
or cadre contrary to the restrictions contained in Rule of 1974 
against his eligibility. The term ‘abolition’ has not been defined in 
the Sindh Civil Servants Act, 1973. However, this expression has 
been used in Rule 9-A of the Rules of 1974. A department can only 
abolish a post with the concurrence of the S&GAD. Abolition of a 
post 
is 
permissible 
in 
case, 
if 
the 
department 
requires 
restructuring, reform or to meet exigency of service in public 
CRP.No.193/2013 etc 
80 
interest. The department can abolish a post for justiciable reason. 
Therefore, in future if a post has to be abolished within the 
Department and/or within the statutory body or organization 
controlled by the Sindh Government, the Department shall seek 
concurrence from the S&GAD coupled with the reasons justifying 
abolition.  
 
 
WHETHER A CIVIL SERVANT CAN APPROACH THE HIGH 
COURT OF SINDH IN A SUIT OR IN CONSTITUTION PETITION 
IN RELATION TO TERMS AND CONDITIONS OF HIS SERVICE 
 
140.    
We have noticed that since more than a year, the High 
Court of Sindh has been entertaining Civil Suits of Civil Servants 
relating to their terms and conditions of service. This issue was 
taken note of by us in our orders dated 30.08.2012 (in Cr.Misc. 
Applns No. 42-K of 2012 and others) and 03.01.2014 (in Civil 
Petition No. 345-K of 2013), relevant portions of which are 
reproduced below : - 
“We have heard the learned ASC, learned AAG and 
Secretary Services and have also perused the record. 
It is an admitted fact that the Applicant is on 
deputation and issue of right of audience of a 
deputationist has been fully dealt with in the 
Judgment dated 10.1.2011 of this Court in Civil 
Petition No.802-K of 2011. The Applicant after the 
Judgment of this Court dated 10.1.2011 and order of 
this Court passed on 2.5.2012 did not relinquish the 
charge 
and 
challenged 
the 
notification 
of 
his 
repatriation 
before 
Sindh 
High 
Court, 
which 
notification was issued on 2.5.2012 pursuant to the 
directives of this Court and obtained status-quo order. 
The High Court, in exercise of its Constitutional 
jurisdiction, could not pass an order of status quo in 
respect of a notification (No.S.O.II (SGA&CD)1-169 
dated 2.5.2012, which on the face of it shows that it 
was issued by the Government of Sindh in strict 
compliance of the order of the Supreme Court dated 
CRP.No.193/2013 etc 
81 
2.5.2012. However, a learned Division Bench of the 
High Court of Sindh in an unprecedented manner, in 
violation of Article 189 of the Constitution, not only 
entertained the petition of the applicant praying 
therein for such relief and passed such order, but 
repeated this illegality by passing similar orders in 
some other petitions. It seems that the respondents in 
these cases were also passively party to such 
illegality as they did not respond to such illegality by 
raising such objection, which was otherwise evident 
from the very language of the said notification. We 
expect that in future the High Court of Sindh would be 
vigilant while entertaining petitions of such nature. A 
copy of this order may be sent to the Registrar, High 
Court of Sindh for perusal of the Honourable Chief 
Justice of the High Court and its circulation amongst 
other Honourable Judges of the High Court of Sindh.” 
Civil Petition No.345-K of 2013 
“The issue of intervention of Sindh High Court in 
service matters has also been noticed by this Court on 
20.12.2013 in Civil Petition No.1927 of 2013 whereon 
a Misc. Application bearing No.7632/2013, following 
order was passed:- 
“3. 
Subject to all just exceptions, this 
CMA is allowed. 
4. 
We have noted with concern that 
off late interference has been 
made by the High Courts in 
exercise 
of 
jurisdiction 
under 
Article 199 of the Constitution 
notwithstanding 
the 
Consti-
tutional bar contained in Article 
212 of the Constitution. In the 
referred circumstances, we are 
persuaded to direct the Registrar, 
High Court of Sindh, Karachi, to 
give a detail list of all those 
pending cases in which order of a 
departmental 
authority 
in 
a 
service 
matter 
has 
been 
challenged and stay has been 
granted. The report shall be 
submitted within two weeks of 
the receipt of this order.” 
 
7. 
We have been provided with a list of the 
suits 
and 
Constitutional 
Petitions 
relating to service matters of the police 
officers pending in the Sindh High Court 
and in many of these cases, interim 
CRP.No.193/2013 etc 
82 
orders have been passed. We are further 
informed that pursuant to the judgment 
of this Court referred to hereinabove the 
Inspector General of Police, Sindh, has 
issued a Standing order to re-fix the 
seniority position of different police 
officers on their demotion in line with the 
findings of the judgment of this Court 
and in a suit bearing No.970 of 2013, 
the Sindh High Court has suspended the 
operation of said Standing Order, as a 
result of which the Sindh Government 
cannot fix seniority position of the police 
officers, which run in many thousands.  
8. 
The 
learned 
Additional 
AG 
further 
informed us that pursuant to suspension 
of operation of the Standing Order, many 
police officers who were sent on training 
had to be withdrawn and some of them 
had filed different Constitution Petitions, 
which included Petitions No.4414 of 
2013, 4447 of 2013, 4722 of 2013 and 
4775 
of 
2013, 
impugning 
their 
withdrawal from police training and the 
learned Division Bench of Sindh High 
Court has directed them to become party 
in the suit in which interim orders were 
passed.  
 
9. 
Prima facie, we fail to understand as to 
how could the Sindh High Court while 
exercising jurisdiction as a Civil Court 
under Civil Procedure Code or even 
under the Constitution can overlook the 
provisions 
of 
Article 
212 
of 
the 
Constitution, 
which 
bars 
their 
jurisdiction. Besides, pursuant to the 
judgment of this Court neither a party 
can approach the Sindh High Court 
directly nor the latter can entertain any 
proceedings either on the Original side 
or under Article 199 of the Constitutional 
jurisdiction on any of these issues 
decided 
by 
this 
Court. 
Moreover, 
seniority of a Civil Servant relates to the 
terms and conditions of a Civil Servant 
and 
the 
Service 
Tribunal has 
the 
jurisdiction to decide it.  
10. 
We are also surprised to notice that 
inspite 
of 
the 
specific 
directions 
contained in the judgment of this Court, 
which judgment was ordered to be 
circulated amongst the learned Judges, 
the Suit No.102 of 2013 is still pending 
with interim order, which is violative of 
Article 189 of the Constitution. We are 
disturbed to notice that Sindh High 
Court has assumed the jurisdiction of 
Sindh 
Service 
Tribunal 
and 
is 
entertaining civil suits and Constitution 
CRP.No.193/2013 etc 
83 
petitions overlooking the bar contained 
under Article 212 of the Constitution.  
11. 
In these circumstances, we feel it more 
appropriate that this petition and the list 
of cases submitted by Mr. Ali Sher 
Jakhrani, AIGP, Legal, through Mr. 
Muhammad Sarwar Khan, Additional 
AG, 
Sindh, 
be 
placed 
before 
the 
Honourable Chief Justice of Pakistan, for 
his 
kind 
perusal 
and 
passing 
appropriate orders, which may be taken 
up alongwith Petition No.1927 of 2013 in 
which a directive was issued by this 
Court to the Registrar of Sindh High 
Court to submit a list of pending cases 
relating 
to 
service 
matters, 
as 
reproduced hereinabove, so that the 
parameters under which High Court 
while exercising jurisdiction either under 
CPC 
or 
the 
Constitution, 
can 
be 
determined and issue be settled once for 
all and or in the alternative the issue 
can be taken up alongwith the Review 
Petition filed by the Sindh Government 
against the referred judgment of this 
Court, as the intervention of the nature 
by the High Court would defeat the 
effect of the judgment of this Court and 
the beneficiaries of the instruments 
which were declared ultra vires of the 
Constitution should be dealt with in 
terms of the judgment of this Court 
without 
loss 
of 
time. 
Prima 
facie, 
beneficiaries of the instruments which 
were 
declared 
ultra 
vires 
of 
the 
Constitution 
through 
the 
different 
proceedings initiated by them in the 
Sindh High Court in fact have attempted 
to defy the judgment of this Court and 
are liable to be proceeded against for 
committing willful contempt.”  
 
141.  
Besides the aforesaid orders, even in the judgment 
under review, we have observed as under:- 
‘’177. Before parting with the judgment, we are 
surprised if not shocked to see that the Sindh High 
Court has entertained a Civil Suit No.102 of 2013 filed 
by Mirza Shahbaz Mughal relating to out of turn 
promotion, which is one of the issues pending 
adjudication before this Court. In this respect the 
background is that a Criminal Misc.Application 
No.278/2013 was filed by Syed Mehmood Akhtar 
Naqvi, in which he has given brief story of Shahbaz 
Mughal, who was appointed ASI on 29.01.1996 and 
promoted as Sub-Inspector on 17.12.2001 and was 
confirmed as Sub-Inspector on 18.12.2003. He was 
promoted as Inspector on 26.04.2004 on adhoc basis 
with the condition that he will not claim seniority over 
his seniors and will retain his original position in the 
CRP.No.193/2013 etc 
84 
promotion list and his promotion will be regularized on 
his turn alongwith his batch mates vide order dated 
18.02.2009. However, he was promoted out of turn on 
adhoc basis as DSP in his own pay and scale. An 
application was made to the Chief Minister by his 
mother and his seniority was fixed and regularized on 
01.04.2011. On the intervention of this Court on 
03.09.2012 out of turn promotion granted to him along 
with Hamid Ali Bhurgari and Abdul Jabbar Khan and 
their inter-se seniorities were revised and he was 
reverted to his original rank of Sub-Inspector.  
178.  …………………………………………………………. 
179. 
…………………………………………………………. 
180. 
…………………………………………………………. 
181. 
In fact, order of the nature has disturbed us 
and in such like situation earlier this Court has 
passed orders when the Sindh High Court entertained 
Constitutional Petitions and suspended Notifications 
of the Sindh Government which were issued under the 
directives of this Court. AG office has also failed to 
discharge its duties by not bringing the real facts to 
the notice of the Sind High Court, which has resulted 
in suspension of the Notification. In any event the 
proceedings in Suit will be regulated by the findings in 
these proceedings.” 
 
142.  
The High Court of Sindh, overlooking the aforesaid 
observations, has continuously entertained the Civil Suits and 
Constitutional Petitions in defiance of Article 189 of the 
Constitution. We did communicate to the High Court of Sindh 
through the Registrar that the High Court of Sindh does not have 
jurisdiction over the aforementioned issues and that a Civil 
Servant can only approach the Services Tribunal for redress of his 
grievances, but this direction has not been cared about by some of 
the learned Judges, overlooking the provisions of Articles 175, 189 
and 212 of the Constitution. 
143.  
Section 9 of Civil Procedure Code confers general 
jurisdiction upon Courts to try all suits of civil nature. In order to 
appreciate the scope of Section 9 of CPC, the same is reproduced 
herein under:  
“9. Courts to try all Civil Suits unless barred. – The 
Courts 
shall 
(subject 
to 
the 
provisions 
herein 
contained) have jurisdiction to try all suits of a civil 
CRP.No.193/2013 etc 
85 
nature excepting suits of which their cognizance is 
either expressly or impliedly barred. 
Explanation: A suit in which the right to property or to 
an office is contested is a suit of a civil nature, 
notwithstanding that such right may depend entirely 
on the decision of questions as to religious rites or 
ceremonies.”     
 
144.  
Civil Courts are Courts of ultimate jurisdiction with 
regard to a civil right, duty or obligation, unless their jurisdiction is 
either expressly or impliedly barred. Section 9 of the Code only 
confers jurisdiction upon Courts and does not grant a substantive 
right of action. The right of action is to be established by reference 
to the substantive law. After the promulgation of the Constitution 
of 1973, the jurisdiction of civil courts has been restricted in 
respect of the matters of Civil Servants relating to their terms and 
conditions of service. Article 240 of the Constitution in Part XII 
Chapter-I deals with structure of Civil Services. Pursuant to 
Articles 240 and 242 of the Constitution, the Sindh Assembly 
promulgated Sindh Civil Servants Act, 1973, on 5th December 
1973, to regulate the appointment of persons to, and the terms 
and conditions of service of persons in the service of Pakistan in 
connection with the affairs of the province of Sindh. The language 
of the preamble is reproduced hereunder:- 
“To regulate the appointment of persons to, and the 
terms and conditions of service of persons in, the 
service of Pakistan in connection with the affairs of 
the Province of Sindh. 
WHEREAS it is expedient to regulate by law, the 
appointment of persons, to, and the terms and 
conditions of service of persons in, the service of 
Pakistan in connection with the affairs of the Province 
of Sindh and provide for matters connected therewith 
or ancillary thereto:” 
 
145.  
The Preamble to the Civil Servants Act, in fact, reflects 
the language of Article 240 of the Constitution. On the 5th 
December, 1973, the Sindh Assembly also promulgated the Sindh 
CRP.No.193/2013 etc 
86 
Service Tribunals Act, 1973 by which Service Tribunal was 
established to exercise jurisdiction in respect of matters relating to 
the terms and conditions of service of Civil Servants. The Preamble 
to the Sindh Service Tribunals Act is reproduced herein under:-  
“Whereas, 
it 
is 
expedient 
to 
provide 
for 
the 
establishment of Administrative Tribunals, to be called 
Service Tribunals, to exercise exclusive jurisdiction in 
respect of matters relating to the terms and conditions 
of service of civil servants, and for matters connected 
therewith or ancillary thereto:”  
 
146.  
Section 3(2) of the Service Tribunal Act provides that 
the Tribunal shall have exclusive jurisdiction in respect of matters 
relating to the terms and conditions of service of Civil Servants, 
including the disciplinary matters. In other words, the jurisdiction 
of all other Courts is barred by the provisions of the Sindh Service 
Tribunals Act, 1973, read with Article 212 of the Constitution. 
147.   
Section 4 of the Service Tribunal Act provides Civil 
Servant with the right of filing an Appeal before the Tribunal, 
subject to the qualifications provided therein.  
148.  
In this background, all the Civil Courts, including a 
Judge (in Chambers) of High Court of Sindh, exercising jurisdiction 
on the original side as a civil court under CPC cannot entertain a 
civil suit of a civil Servant relating to the terms and conditions of 
his service. The exercise of jurisdiction by the High Courts is 
conferred under Article 175(2) which reads as under:- 
“175(2) No Court shall have any jurisdiction save as is 
or may be conferred on it by the Constitution or by or 
under any law.” 
149.  
Article 212 of the Constitution ousts the jurisdiction of 
High Courts and civil Courts in respect of the matters pertaining to 
CRP.No.193/2013 etc 
87 
terms and conditions of civil servants. In other words, the 
provisions of Article 212 do not confer a concurrent jurisdiction to 
civil Courts, High Courts and Tribunals. The ouster contemplated 
under the said Article is a Constitutional command, and, therefore, 
of necessity restricts the jurisdiction of civil courts and High 
Courts on the subject, which squarely falls within the exclusive 
domain of Tribunals. 
150.  
The High Court of Sindh has completely overlooked the 
intent and spirit of the Constitutional provisions relating to the 
terms and conditions of service, while entertaining Civil Suits and 
constitution petitions filed by the civil servants, which are explicitly 
barred by Article 212. The expression ‘Terms and Conditions’ 
includes transfer, posting, absorption, seniority and eligibility to 
promotion but excludes fitness or otherwise of a person, to be 
appointed to or hold a particular post or to be promoted to a higher 
post or grade as provided under Section 4(b) of the Sindh Service 
Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by 
now, a settled principle of law that the civil and writ jurisdictions 
would not lie in respect of the suits or petitions filed with regard to 
the terms and conditions of Civil Servants, and yet some of the 
learned Judges of High Court of Sindh have erroneously exercised 
both civil and writ jurisdictions with regard to the terms and 
conditions of civil servants.   
151.  
We, for the aforesaid reasons, conclude that the 
exercise of jurisdiction by way of suit and Constitution petition 
filed by a civil Servant with regard to his terms and conditions of 
service is violative of Articles 175, 212 and 240 and the law.  
CRP.No.193/2013 etc 
88 
152.  
During the present proceedings, we were informed by 
the learned Additional Advocate General Sindh and other 
petitioners that the Civil Servants have filed suits and petitions 
before the High Court of Sindh on the subject, which was 
conclusively determined by this Court in its judgment under 
review. We called for the list of the Constitution Petitions as well as 
of the suits which were filed before the High Court of Sindh, and 
we are shocked to notice that numerous petitions and suits filed by 
the Civil Servants were pending and in some cases even restraining 
orders had been passed in the matters strictly falling outside the 
ambit of the suit or writ petition and the only and proper forum 
available in such cases was the Tribunal.  
153.  
More alarmingly, we also observed that some of the 
suits and petitions were clearly in violation of the principles set by 
this Court in the judgment under review. The admission of these 
suits and petitions by the Learned Judges concerned obviously 
confront and defy Article 189, if not attract the provisions of Article 
209 of the Constitution.  
154.  
Hence, the suits and C.Ps which have been filed by the 
officers who were de-notified by the Sindh Government in 
compliance with the judgment under review, shall stand abated as 
the High Court of Sindh lacks the jurisdiction to hear such suits 
and CPs in view of the bar under Article 189. However, the 
Plaintiffs or Petitioners, whose suits or CPs stand abated by this 
judgment can approach this Court if he has not filed Review 
Petition earlier.   
155.  
The second category of the Petitions relates to the  
Civil Servants, who  have  filed  Petitions or Suits against orders of 
departmental authorities which have no nexus with the findings of 
CRP.No.193/2013 etc 
89 
the judgment under review. The list provided to us by the Registrar 
reflects that the Civil Servants have filed as many as 2, 278 
Constitutional Petitions besides a substantial number of Suits in 
the High Court of Sindh in relation to their terms and conditions of 
service.   
156.  
We direct the Hon’ble Chief Justice of the High Court 
of Sindh to constitute a Special Division Bench comprising Senior 
Judges of the Court to scrutinize the aforesaid Constitutional 
Petitions, in the light of the principles enunciated by this Court in 
these proceedings. In case, the learned Special Division Bench 
comes to the conclusion that the subject matter of the Constitution 
Petitions relates to the terms and conditions and or the 
disciplinary proceedings of the Civil Servants, they shall forthwith 
remit such Constitutional Petitions to the Sindh Service Tribunal 
or the Federal Service Tribunal, as the case may be.  
 
157.  
Likewise, the Hon’ble Chief Justice of High Court of 
Sindh shall also constitute a Special Bench comprising the Senior 
Judge of the Court, who will examine the nature of Civil Suits filed 
by the Civil Servants and transfer them to the Sindh Service 
Tribunal or the Federal Service Tribunal, as the case may be, in 
case such suits pertain to the terms and conditions of their service 
including disciplinary proceedings, forthwith under intimation to 
this Court. The Federal Service Tribunal or the Sindh Service 
Tribunal, on receipt of the R&PS of the Constitution Petitions or 
Suits, shall treat them as Appeals deemed to have been filed before 
them on the date when presented before the High Court of Sindh 
and decide them in accordance with law. The question of 
CRP.No.193/2013 etc 
90 
limitation, if involved, will be considered by the respective 
Tribunals, in accordance with law, in the peculiar facts and 
circumstances of the cases.  
158.  
In the same manner, the Civil Suits filed by the 
employees of statutory bodies or Government Servants relating to 
their terms and conditions of service inclusive of the disciplinary 
proceedings, who are serving in the organizations having statutory 
service Rules, shall be transferred to be heard by a Division Bench 
in Constitutional jurisdiction treating them as Constitutional 
Petitions for disposal in accordance with law. The Chief Justice of 
the High Court of Sindh shall constitute the Special Benches 
within a week from the date of communication of this judgment. 
The Special Benches, as directed above, shall take up the cases on 
day to day basis and complete the aforesaid exercise within two 
months from the date of constitution of the Benches. The 
Registrar, High Court of Sindh, shall submit periodic compliance 
report after every two weeks for our perusal in Chambers. 
 
159.  
We, for the aforesaid reasons, dismiss all these review 
petitions along with the C.M.As (except the cases dealt with 
separately in Review Petitions and Civil Suits) in the light of our 
findings recorded hereinabove, which are in addition to the 
findings recorded in the judgment under review.  
160.  
We direct the Chief Secretary, Sindh, to create surplus 
pool within the parent department, of the officers/officials who 
have been de-notified and create vacancies to accommodate them, 
within a period of two months from the date of communication of 
this judgment. The officers/officials who have been repatriated to 
their parent departments shall be entitled to salaries and other 
CRP.No.193/2013 etc 
91 
benefits from the date they were relieved to join their parent 
departments. Their seniority shall be maintained in their parent 
departments with their batch-mates, as if they were never relieved 
from their parent departments. Expiry of period of lien shall not 
come in the way of the officers to deprive them from joining the 
parent department. In case, if the parent department has been 
abolished, the competent authority, shall appoint them by transfer 
in terms of Rule 9-A, subject to the restrictions contained therein, 
in line with the findings recorded by us in these proceedings. We 
make it clear to the Sindh Government that if any other officer, 
who was covered by the judgment under review or by this 
judgment, is still working in Sindh Government in willful defiance 
of the judgments, he shall be repatriated and or transferred to his 
parent department, post or cadre forthwith. Pendency of 
proceedings filed by any such officers/officials who have been 
ordered to join their parent department or otherwise continuing in 
defiance of the judgment of this Court by obtaining any restraining 
order from any forum including the High Court of Sindh shall not 
come in the way of the Sindh Government in implementing this 
judgment.  
161.  
The Sindh Government is directed to implement the 
judgment in letter and spirit. Non-compliance of any part of this 
judgment shall expose the Chief Secretary, Sindh, Secretary 
Services, Secretary Law, concerned Secretary of the department or 
any officer found instrumental in this behalf besides the 
beneficiary to contempt proceedings. Compliance report shall be 
submitted by the Chief Secretary, Sindh through the Registrar of 
this Court for our perusal in Chambers, within 15 days from the 
date of communication of this judgment.  
CRP.No.193/2013 etc 
92 
REPATRIATION OF OFFICERS TO  
FEDERAL GOVERNMENT 
 
162.  
By the judgment under review, we had directed the 
Sindh Government to repatriate the officers beneficiaries of the 
legislation, which was struck down by the judgment under review. 
We are informed that many Departments of the Federal 
Government have declined to accept the officers repatriated by 
Sindh Government in compliance with the judgment under review. 
The Additional Advocate General, who appeared in the Review 
Petition has brought to our notice the grievances of the officers, 
which belong to the Federal Government or to the institution run 
under the patronage of Federal Government inter alia, on the 
ground that their period of lien with the parent Department has 
expired and or there was no vacancy to accommodate them.  
 
163.  
This Court has already held in the judgment under 
review that initial order of their transfer from the parent 
departments to the Sindh Government was not backed by the 
mandate given by the civil servant law, which is promulgated 
pursuant to Articles 240 and 242 of the Constitution. Therefore, 
such orders by the parent Departments are without lawful 
authority. Consequently, the expiry of the period of the lien will 
have no bearing.  
 
164.  
The list of the officers is reproduced herein below: 
 
CRP.No.193/2013 etc 
93 
CRP.No.193/2013 etc 
94 
CRP.No.193/2013 etc 
95 
CRP.No.193/2013 etc 
96 
CRP.No.193/2013 etc 
97 
CRP.No.193/2013 etc 
98 
CRP.No.193/2013 etc 
99 
CRP.No.193/2013 etc 
100 
CRP.No.193/2013 etc 
101 
CRP.No.193/2013 etc 
102 
CRP.No.193/2013 etc 
103 
CRP.No.193/2013 etc 
104 
CRP.No.193/2013 etc 
105 
CRP.No.193/2013 etc 
106 
CRP.No.193/2013 etc 
107 
CRP.No.193/2013 etc 
108 
 
165.  
We, in the peculiar circumstances of the matter, direct the 
aforesaid officers to report to the Secretary Establishment Division, 
Islamabad, within 15 days from the date of this judgment. The Secretary 
Establishment shall create a Devolution Cell in the respective parent 
Departments and, on availability of the vacancy in the parent 
Departments, they will be posted. In case, the Department of the Federal 
Government and or the Organization to which the officer belongs has 
been devolved, the Secretary  Establishment  shall post them in terms of 
Section 11-A of  the Civil Servants Act to another Department in
conformity with the scheme of the Civil Servants Act. All these 
officers shall be entitled to their salaries and other perks from the 
date they were relieved from Sindh Government. They will also be 
entitled to their inter-se seniority and promotion, subject to the 
Rules, with their batchmates as if they were never relieved from 
their parent Departments.  
166.  
The Attorney General for Pakistan shall keep in touch 
with the Secretary Establishment and ensure that this part of the 
judgment is implemented in the above terms. The Attorney General 
shall report compliance within two months from the date of 
communication of the judgment. 
 
C.R.P.NO. 81 OF 2013 
(Tariq Mughal  vs. Chief Secretary Sindh) 
167.  
One of the Petitioners, Tariq Mughal, had filed Crl. 
Review Petition No.81/2013, challenging the judgment under 
review. The Petition was heard on 21.10.2014 and judgment 
reserved, alongwith the other Review Petitions. On 12.11.2014 he 
made a Criminal Misc. Application No.nil/2014 for withdrawal of 
his Crl. Review Petition No.81/2013. Once his Crl. Review Petition 
was heard at length by us in Court, there was no occasion to seek 
withdrawal of the Petition without any justification. We, in the 
peculiar circumstances declined the request of the Petitioner Tariq 
Mughal for withdrawal of his Crl. Review Petition No.81/2013.  
168.  
On receipt of the application for withdrawal of Civil 
Review Petition by Tariq Mughal, we had asked the Additional 
Advocate General Sindh to confirm as to whether Tariq Mughal 
was repatriated to his parent Department on issuance of the 
notification. In response, we received a brief note from S&GAD 
CRP.No.193/2013 etc 
110 
containing service profile of Tariq Mughal, which reflects that 
originally he was an Engineer (Mechanical) in BS-17 in Port Qasim 
and transferred on deputation to the Sindh Unified Grade Service 
for 3 years. During his period of deputation, on 1.10.2011, he was 
absorbed in the Sindh Unified Grade Service. On 02.07.2013, the 
Sindh Government issued notification in compliance with the 
judgment under review withdrawing his absorption. Instead of 
repatriating him to the Port Qasim Authority, the Secretary Local 
Government Department had placed his services in the surplus 
pool of Local Government and, subsequently, he was posted in 
Sindh Local Government Department.  
169.  
When this Court enquired about the status of the 
Petitioner, the Local Government Department issued notification 
on 15.11.2014, repatriating him to his parent Department i.e. Port 
Qasim Authority.  
170.  
After perusal of the brief note of the S&GAD, we are of 
the view that the Petitioner Tariq Mughal had wrongly continued in 
the Sindh Local Government Department in connivance with the 
high ups of the Sindh Government. It appears to be an alarming 
situation, 
where 
the 
Secretary, 
Sindh 
Local 
Government 
Department has willfully defied the judgment of this Court by 
placing the services of Tariq Mughal in the surplus pool of the 
Sindh Local Government Department. Tariq Mughal was required 
to report to his parent Department which he willfully avoided. 
171.  
We, accordingly, direct the Sindh Government to 
ensure that Tariq Mughal stands relieved forthwith to join his 
parent Department. We restrain ourselves from initiating contempt 
proceedings against Tariq Mughal and the then Secretary Local 
CRP.No.193/2013 etc 
111 
Government, who were in league to defeat the findings of this 
Court which resulted in his repatriation. The Chief Secretary Sindh 
shall submit a compliance report within 15 days from the date of 
communication of the judgment. The application for withdrawal of 
the Criminal Review tainted with malice, is dismissed alongwith 
the Review Petition for the reasons already detailed in the 
judgment under review. The Chairman, Port Qasim Authority shall 
allow joining to Tariq Mughal, and expiry of lien period will not 
come in his way. The Petitioner, however, shall also be entitled to 
inter-se seniority with his batchmates as if he was never relieved 
from the Port Qasim Authority.  
Crl. Review Petition No.38/2014                        
(Mrs. Asma Shahid Siddiqui, in person) 
172.  
The Petitioner, in person, submitted that she was 
serving in the Forest Department, Government of Punjab as Forest 
Ranger in BS-16 on regular basis. On 11.2.1997, her services were 
transferred to the Forest Department, Sindh Government, in the 
same grade while placing her seniority at the bottom. She was 
posted as Forest Officer in BS-16 in the Department with the 
consent of both the Provincial Governments and subsequently, she 
was absorbed in the Sindh Province in terms of the provisions of 
Sl. No.4 of the ESTACODE which deal with the wedlock policy. Her 
absorption in Sindh Forest Department was made in conformity 
with Section 24 of the Act read with Rule 9-A of the Rules of 1974. 
The Petitioner has stated that she had been serving as District 
Forest Officer in the Province of Sindh for the last 17 years and she 
was repatriated to the Province of Punjab in compliance with the 
judgment under review.  
CRP.No.193/2013 etc 
112 
173.  
In the peculiar circumstances of the case, we are of the 
considered view that her case is an exception to the findings 
recorded by us in the judgment under review as she was 
transferred and absorbed in terms of the provisions of ESTACODE 
on the basis of wedlock policy, in the same Basic Scale and 
Department in Sindh, in which she was serving in the Province of 
Punjab since 1997. Therefore, she was wrongly de-notified. We, 
accordingly, direct the Chief Secretary, Sindh to immediately 
withdraw the notification of her repatriation and restore her 
posting to her original position in the Province of Sindh as if she 
was never repatriated. She shall be given all the salaries and perks 
of the intervening period. The compliance report shall be submitted 
by the Chief Secretary, Government of Sindh, which shall be 
placed for our perusal in Chambers within two weeks from the 
judgment.    
174.  
For the aforesaid reasons, the Criminal Review Petition 
No.38/2014, is allowed in the above terms. 
 
Crl.R.P.No.79/2013  
(Syed Shakir Hussain vs. Province of Sindh etc) 
 
175.  
The learned Counsel for the Petitioner contended that 
in pursuance of the judgment under review, out of turn promotion 
of the Petitioner was withdrawn. However, while withdrawing his 
out of turn promotion, the Competent Authority has fixed his 
seniority below his batchmates as most of them, who were junior 
to him, were promoted in the intervening period. This is not the 
spirit of the judgment under review. We, accordingly, direct the 
Chief Secretary, Government of Sindh to ensure that the seniority 
of the Petitioner is fixed with his batchmates, in the same order as 
CRP.No.193/2013 etc 
113 
if he was never given out of turn promotion, and if his batch mates 
were promoted in the intervening period, he shall also be promoted 
with them, maintaining his original inter-se seniority. The matter 
shall be resolved by the Chief Secretary or by the Competent 
Authority within two weeks of this judgment and the Petitioner 
shall be entitled to all his perks and salary benefits along with the 
difference, if any, from the date of his de-notification till fixation of 
his seniority.  
176.  
The Criminal Review Petition No.79/2013, filed by the 
Petitioner is allowed in the above terms. The Chief Secretary shall 
submit compliance report within two weeks from the date of 
communication of this judgment, for our perusal in Chambers.   
 
CRP NO. 71 OF 2013  
(Jaffar Abbasi  Vs. Province of Sindh etc) 
177.  
The Petitioner Jaffar Abbasi was de-notified and 
reverted back to his parent department by the Sindh Government 
in compliance with the judgment under review, as he was absorbed 
in 
the 
Provincial 
Secretariat 
Service 
from 
Public 
Service 
Commission Department. He filed the Review Petition, which was 
argued by his Counsel, Mr. Tariq Mehmood on 10.06.2014 and 
was reserved for judgment.  
178.   
In September 2014, when the other Review Petitions 
were taken up for hearing, the Petitioner’s Counsel sought 
withdrawal of his Review Petition on the ground that he has filed a 
Constitution Petition before the High Court of Sindh and has 
obtained an interim order. This information was shocking for us. 
We declined the request of the learned ASC for withdrawal of the 
CRP.No.193/2013 etc 
114 
Review Petition and directed the Registrar High Court of Sindh to 
send us the R&Ps of the Constitution Petition filed by the 
Petitioner. 
179.  
On perusal of the R&Ps, we had noticed that on 
01.07.2013, the Petitioner filed a Constitution Petition No. D-2817 
of 2013 before the High Court of Sindh, on the same subject which 
was pending in C.R.P.No.71/2013. On 3.7.2013 The Petition was 
fixed before a Division Bench No.V, headed by Mr. Justice Syed 
Hasan Azhar Rizvi, which Bench passed the following order : - 
“1. 
Granted 
2. 
Granted with all just exceptions. 
3&4. It is stated by the learned counsel that the 
petitioner is not a deputationist and is working in the 
department which has been assigned to him after 
passing the competitive examination. He states that 
under the garb of the judgment given by the 
Honourable Supreme Court of Pakistan, he is now 
being transferred from his department. He states 
that the respondents may be directed to follow and 
interpret the judgment of the Honourable Supreme 
Court dated 12.06.2013 in its letter and spirit which 
is not being complied with by them. Let notice be 
issued in this regard to the respondents as well as 
A.G. for 6.8.2013.” 
 
180.  
The Order Sheet shows that the matter was fixed on 
6.8.2013, when the Board was discharged. On 8.8.2014, the Office 
fixed the matter on 25.9.2014. However, on 11-09-2014, an 
application for urgent hearing was allowed by the Division Bench 
No.V and the matter was taken up in Court on the same day. The 
Division Bench comprising Justice Syed Hasan Azhar Rizvi and 
Justice Aziz-ur-Rehman, suspended the notification, issued by the 
Sindh Government in compliance with the judgment under review, 
while passing the following order without hearing the Advocate 
General, Sindh, who was on notice  : - 
“ 
Urgent application granted. 
 
Learned Counsel for the Petitioner submits 
that a notification dated 1.09.1999 enclosed as 
CRP.No.193/2013 etc 
115 
Annexure “B” at page-33 with the memo of Petition 
was issued whereby the Competent Authority was 
approved the appointment of the Petitioner on the 
post of Deputy Secretary (Regulation) BPS-18 in the 
Sindh Public Service Commission and transferred 
him permanently from commission to S&GAD as 
Deputy Secretary (Budget). However, by another 
Notification 
dated 
02.11.1999 
the 
aforesaid 
Notification was withdrawn/cancelled, which is 
enclosed as Annexure “C” at page-35 with the memo 
of Petition. Petitioner filed departmental Appeal to 
the Competent Authority thereafter, challenged the 
said Notification before the Sindh Services Tribunal 
at Karachi in Appeal No.56/2000, which was allowed 
by order dated 21.06.2005 whereby the impugned 
Notification dated 02.11.1999 was set-aside and the 
Notification dated 01.09.1999 was restored, said 
judgment 
of 
learned 
Services 
Tribunal 
was 
challenged by one Imran Ali Soomro before the 
Hon’ble Supreme Court of Pakistan by filing Civil 
Appeal No.1229/2005, which was dismissed by 
orders enclosed as Annexures “G&H” with the memo 
of Petition as such the judgment of the Services 
Tribunal attained finality. Learned Counsel for the 
Petitioner further states that the Petitioner was 
appointed on the basis of the Notification dated 
01.09.1999 and his appointment was upheld by the 
Judicial Orders upto the Apex Court. Respondents 
have wrongfully and illegally mentioned in the name 
of the Petitioner at Sr.No.20 in the Notification dated 
02.07.2013. As per learned Counsel the case of the 
Petitioner does not fall within the purview/ambit of 
judgment passed in Criminal Original Petition 
No.89/2011 passed by the Hon’ble Supreme Court of 
Pakistan reported in 2014 PLC (CS) 82. Case of the 
Petitioner as per learned Counsel is neither of 
absorption nor out of turn promotion as such his 
case is outside the scope of the notification dated 
02.07.2013. Issue notice to the Respondents and 
Advocate General Sindh for 13.10.2014. In the 
meantime, the operation of the impugned Notification 
to the extent of Petitioner viz. Muhammad Jaffer 
Abbasi mentioned at Sr.No.20 is hereby suspended, 
till next date of hearing.” 
 
181.  
The High Court of Sindh was not competent to 
entertain the Constitution Petition of the Petitioner under Article 
199 of the Constitution, as the Petitioner was seeking suspension 
of the notification issued by the Sindh Government in compliance 
with the judgment of this Court. The High Court of Sindh cannot 
sit in appeal against the findings recorded by this Court, in 
defiance of the mandate of Article 189 of the Constitution. Besides, 
the Petitioner has already filed a Review Petition in this Court for 
CRP.No.193/2013 etc 
116 
remedy of his grievance, which was heard on 10.06.2014 and the 
judgment was reserved. The jurisdiction of High Court of Sindh is 
otherwise ousted by the bar of Article 212 of the Constitution.  
182.  
We have noticed that the High Court of Sindh, while 
overlooking the mandates of Articles 189 and 212 of the 
Constitution, has started entertaining Petitions under Article 199 
of the Constitution filed by Civil Servants which has paralyzed the 
Service Tribunals. In order to comprehend the true picture, we 
have called for the R&P of the Constitution Petition No. 2817 of 
2013 filed by the Petitioner. We had noticed that the Petitioner, 
after the judgment in Review Petition was reserved in June 2014, 
had filed the Petition before the High Court of Sindh and obtained 
interim order, with the sole object to defeat the judgment of this 
Court. His case of erroneous absorption in Provincial Secretariat 
Service is fully covered by the findings recorded by this Court in 
the judgment under review. The Petitioner, being an Officer of the 
Public Service Commission, was wrongly absorbed in the Provincial 
Secretariat Service, which is a distinct specie of service and has its 
independent recruitment Rules and Service Structure. The 
Petitioner was not eligible to be appointed by transfer under Rule 
9(1) of the Rules of 1974 and was erroneously absorbed in the 
Provincial Secretariat Service, which service could only be joined 
after qualifying the required competitive examination. The Civil 
Servants Act and Rules framed thereunder do not permit such 
absorption. We, for the reasons already recorded by us in our 
impugned judgment, dismiss the Civil Review Petition, holding that 
the Petitioner was rightly de-notified by the Sindh Government in 
compliance with the judgment under review. Consequently the 
Constitution Petition No.D-2817 of 2013 stands abated. 
CRP.No.193/2013 etc 
117 
183.  
The Petitioner’s conduct of approaching High Court of 
Sindh, during the pendency of his Review Petition, prima facie, 
amounts to contempt of the authority of this Court. We, 
accordingly direct the Office to issue Show Cause notice to the 
Petitioner under Article 204 read with Section 17(1) of the 
Contempt of Court Ordinance 2003, calling upon him to submit 
his explanation as to why he should not be proceeded against for 
willfully defying and defeating the judgment of this Court dated 
12.6.2013, by filing the Constitution Petition No.2817/2013, in the 
High Court of Sindh on the same subject and obtaining the 
restraining order, after availing the remedy of Review Petition. The 
Office shall make a separate file of the proposed Criminal 
proceedings by assigning number. 
 
 
 
Crl.R.P No.80 OF 2014 
 
 
(Mirza Shahbaz Mughal vs. Province of Sindh etc) 
 
184.  
Through these proceedings, the learned ASC Mr. Abid 
Zuberi has prayed that the proceedings in Suit No. 102/2013 filed 
by the Petitioner before the learned High Court of Sindh be allowed 
to continue. He has sought expungment of the remarks passed by 
this Court against the Petitioner in the judgment under review. 
185.  
On 01.02.2013, the Petitioner had filed Civil Suit No. 
102 of 2013 in the High Court of Sindh against the Sindh 
Government and its officials for “Declaration and Permanent 
Injunction” with the following prayers:-  
“PRAYER 
It is, therefore, prayed that this Hon’ble Court may 
be pleased to pass judgment and decree in favour 
of the Plaintiff as under: 
A. 
Declare that the Notification dated 13-1-2012 
issued by Defendant No.1 withdrawing the 
CRP.No.193/2013 etc 
118 
name of the Plaintiff from the Notification 
dated 3-09-2012 is in accordance with law. 
B. 
Declare that the Impugned Letter dated           
28-1-2012 issued by the Defendant No.2 is 
illegal, 
malafide, 
without 
jurisdiction, 
unwarranted in law and fact as well as in 
violation of principles of Natural Justice. 
C. 
Suspend 
the 
Impugned 
Letter 
dated               
28-1-2012 issued by the Defendant No.2.  
D. 
Grant 
permanent 
Injunction 
prohibiting/ 
restraining the Defendants, their employees 
or any person acting under them or on their 
behalf from taking any coercive action 
against the Plaintiff in pursuant to Impugned 
Letter dated 28-1-2013. 
E. 
Grant permanent Injunction prohibiting / 
restraining the Defendants, their employees 
or any person acting under them or on their 
behalf from withdrawing Notification dated 
13-1-2013. 
F. 
Grant any other relief deemed just and 
appropriate in the circumstances of the case. 
G. 
Grant costs of the suit.  
 
186.  
Alongwith the Suit, an application under Order XXXIX 
Rules 1 and 2 CPC was also filed and on 04.02.2013, a State 
Counsel appeared on behalf of the Sindh Government and sought 
time. The learned High Court passed status-quo order, which 
continued. On 15.05.2013, the Petitioner made three Misc. 
Applications, one application for urgent fixation of the matter, 
second application for suspension of the Notification dated 
07.05.2013, by which the Petitioner’s earlier Notification dated 
14.03.2013 for appointment as DSP in Sindh Police was 
withdrawn, and third application was under Order XXXIX Rule 2(3) 
CPC, seeking initiation of contempt proceedings against the 
Defendant Additional Chief Secretary (Home Department) for willful 
disobedience of the ‘status-quo’ order of the Court.  
187.   
The learned High Court on 16.05.2013, allowed the 
urgency application and, while issuing notices in the other two 
CRP.No.193/2013 etc 
119 
applications, suspended the Notification dated 07.05.2013 of the 
Additional Chief Secretary (Home Department).  
188.  
The background of the notification of 07.05.2013 of 
the Sindh Government was that during the hearing of the 
arguments in C.P.No.71/2011 and other Petitions in Criminal 
Original Petition No. 89-K of 2011, two CMAs numbered as 
245/2013 and 247/2013  were filed, complaining that the Sindh 
Government had appointed 10 D.S.Ps without observing requisite 
Codal formalities. On 06.05.2013, this Court enquired from the 
Additional Advocate General Sindh, representing the Sindh 
Government, to satisfy the Court as to how the Sindh Government 
could appoint D.S.Ps without recourse to the procedure prescribed 
under the service law. The Additional Advocate General sought 
time for instructions and on the following day, he made a 
statement that all the D.S.Ps appointed directly, including the 
Petitioner, have been de-notified by notification dated 07.05.2013. 
189.  
The Petitioner challenged the notification dated 
07.05.2013 in the said civil suit and obtained a restraining order, 
enlarging the scope of the suit. On the date when the notification 
dated 07.05.2013 was placed before us, we were not informed that 
a suit was filed by the Petitioner. However, a complaint was sent to 
this Court that inspite of the Notification dated 07.05.2013, the 
Petitioner is continuing as DSP on the basis of an order in the Suit 
No. 102 of 2013, and therefore, R&Ps of the said Suit was called. 
190.  
After perusal of the R&Ps, we in paras 177 to 181 of 
the judgment under review had taken note of the conduct of the 
Petitioner who was willfully defeating the orders of this Court 
passed at times. We, therefore, directed the learned High Court of 
CRP.No.193/2013 etc 
120 
Sindh to dispose of the suit on the basis of the findings recorded 
by us in the judgment under Review. This has not been done by 
the learned High Court of Sindh, though the impugned judgment 
was circulated amongst the Judges of the Court through the Chief 
Justice.  
191.  
It is contended by Mr. Abid S. Zubair, ASC that the 
Petitioner was lawfully appointed as DSP and the judgment under 
review does not cover the case of the Petitioner. He prayed that the 
suit filed by the Petitioner before the High Court of Sindh be 
allowed to continue and its maintainability be determined by the 
said Court. We inquired from the learned counsel to satisfy us as 
to how a Civil Servant can file a Suit relating to the terms and 
conditions of his service. We further asked to satisfy us as to how 
the Petitioner was granted back dated seniority and out of turn 
promotion. He could not offer any plausible explanation to the 
queries. We have perused the service profile of the Petitioner 
provided by the S&GAD.  
192.  
 We have noticed that the Petitioner was appointed as 
ASI on 29.01.1996 in Larkana (Range) under the Police Rules 
1934, as a Probationer. He was confirmed as A.S.I. He was 
promoted to the rank of Sub Inspector on 17.12.2001 and was 
confirmed as such on 18.12.2003. He was extended undue favours 
and appointed by promotion as Inspector on 26.04.2004  on adhoc 
basis with the rider that he will not claim seniority over his 
seniors, and will retain his original seniority in the promotion list. 
The order of his promotion further qualifies that his promotion will 
be regularized on his turn along with his batch mates.  
CRP.No.193/2013 etc 
121 
193.  
A further favour was extended to the Petitioner on 
18.02.2009, when the then CCPO Karachi recommended to post 
him as DSP on his own pay and scale which recommendation was 
accepted on 20.05.2009. The grounds recommending the Petitioner 
for out of turn promotion were illegal and untenable in law. We 
have gone through the Minutes of the Committee, recommending 
the appointment of the Petitioner on OPS as DSP, reproduced 
herein below: 
“The committee has examined the record as well as 
comments furnished by the then Capital City Police 
Officer, 
Karachi 
under 
his 
office 
letter 
No. 
CCPO/KHI/E.I/93359 
dated 
10.08.2010. 
The 
committee has also observed that the performance of 
Mirza Shahbaz Mughal while working as PSO to 
CCPO, Karachi on officiating basis, on law & order 
situation in Karachi, have full grasp over his duties, 
which facilitated to achieve disposal of pending & 
complicated cases even holidays, which can be 
termed outstanding for his exceptional performance. 
 
He not only performed superb in reorganization of 
office. He has excellent analytical skills with capacity 
to plan, organize and executive his plan, which help 
full to CCPO Karachi in public dealing for their 
problems and pursue for its redressal. 
 
Besides above, in the following filed assignments, his 
performance remained excellent and up to the mark: 
 
1. As 
SHO, 
PS 
Gulistan-e-Johar 
on 
26.04.2004, after exchange of firing he 
arrested 2 bandits and recovered looted 
booty 
dinar 
475,000/- 
and 
illicit 
weapons from their possession (FIR No. 
59/2004 u/s 353/324/34 PPC). 
 
2. As 
SHO 
PS 
Gulistan-e-Johar 
on 
29.06.2004, 
near 
Safoora 
Chowk 
arrested 
2 
suspicious 
alongwith 
motorcycle and recovered one pistol 30 
bore loaded and looted booty Rs.3510/- 
(FIR No. 117/2004 u/s 353/324/34 
PPC). 
 
3. On 10.08.2004, during patrolling among 
bungalows 
of 
Block-8, 
arrested 
suspicious person and one pistol 30 bore 
loaded with 3 cartridges an twin edged 
dagger having blade more than 8.  
 
The officer was recommended for promotion to the 
next higher rank in recognition of his excellent 
performance in arrest of notorious street criminals, 
CRP.No.193/2013 etc 
122 
number of gun runners, during peddlers to traffickers 
alongwith recoveries and lodged FIRs, however, after 
due consideration he was promoted as DSP on 
officiating basis. He is working as DSP since last more 
than 21 months. 
 
In view of the above the committee has recommended 
that the request of Mrs. Zahida Sarwar for placing the 
name of Mirza Shahbaz Mughal in the seniority list of 
DSsP of Sindh Police, may be allowed and matter may 
be referred to competent authority for regularization of 
Mirza Shahbaz Mughal as DSP.” 
   
194.  
The undue favours extended to the Petitioner-Sub 
Inspector, in an unprecedented manner on the aforesaid grounds, 
could hardly be construed valid to excel his rank to that of a DSP. 
It is the duty of a Police Officer to arrest culprits and bring them to 
book. These acts of the Petitioner, in no way, could be construed 
as gallantry act beyond the call of duty of a Police Officer. What 
was more surprising was that the Committee, on the aforesaid 
grounds, had recommended the Petitioner for his regularization in 
the rank of D.S.P. through the then I.G Police and the then 
Additional Chief Secretary, who endorsed these recommendations. 
The regularization of the Petitioner as DSP, was treated as a fresh 
appointment on regular basis in order to save his appointment as 
D.S.P against the law enunciated by this Court in an 
unprecedented manner, which we believe, has never happened 
before in Police Force.  
195.  
The Petitioner was placed at Sl.No.283 in the seniority 
list of the Sub-Inspectors. It is claimed that his appointment as 
DSP was regularized in exercise of powers conferred under Section 
24 of the Act read with Rule 19 of the Rules of 1974. The 
competent authority can neither appoint nor regularize the 
services of the Petitioner under section 24 of the Act, which is an 
enabling provision and does not confer authority on the competent 
CRP.No.193/2013 etc 
123 
Authority to pass such orders to the disadvantage of other Civil 
Servants. We would be dealing with the scope of Section 24 of the 
Act separately. Appointment of a Civil Servant is provided under 
Section 5, subject to the prescribed manner, which requires that 
any officer in BS-17 can only be appointed on the recommendation 
of the Public Service Commission, which, after advertising the 
post, takes examination of the candidates and declares their 
results on merit. The powers under Section 24 of the Act cannot 
circumvent the mandate for appointment of a Civil Servant as 
provided by the Articles 240 and 242 of the Constitution. Reference 
to Rule 19 of the Rules of 1974 is also alien to the case of the 
Petitioner. The powers under Rule 19 could only be exercised in 
the public interest, in exigencies and pending nomination of a 
candidate by the Commission with the qualification that such 
powers are subject to the procedure laid down by Part-III of the 
initial appointment under the Rules of 1974.  
196.  
We have failed to understand as to how the Petitioner, 
through such unwarranted means, can continue in the Police 
Force as D.S.P. The Petitioner, at no point of time, was ever 
confirmed in the rank of Inspector, therefore he could not have 
been appointed on OPS as DSP nor could his services be 
regularized unless he was a confirmed Inspector or had served for 
five years in order to qualify to be considered for promotion to the 
post of DSP. Under the Civil Servants Act, seniority of the police 
officers is reckoned from the date of their regularization, as 
provided under section 8(4) of the Civil Servants Act. Since the 
Petitioner was never promoted on his turn as Inspector, nor was 
confirmed in the rank of Inspector and his batch mates are still 
serving as Sub Inspectors, therefore, he cannot be regularized as 
CRP.No.193/2013 etc 
124 
DSP nor his regularization can be treated as fresh appointment as 
DSP. 
197.  
The procedure for appointment to the post of DSP has 
two modes (i) by promotion, where an Inspector confirmed in his 
substantive rank has served for five years and is otherwise senior 
amongst his batch mates, or (ii) by initial recruitment, as 
prescribed by the Rules. The Petitioner is not covered by this mode 
as he does not qualify the ternural limitation prescribed for 
promotion.  By Act No. XI of 1989, the Sindh Assembly has created 
‘Sindh Public Service Commission’ and under Section 10 of the 
said Act, the Sindh Government has framed the Rules calls “Sindh 
Public Service Commission (Functions) Rules 1990” [hereinafter 
referred to as “the Rules 1990”]. In terms of Rule 3(1)(i) it is 
provided that all civil posts connected with the affairs of the 
Province in Basic Pay Scale 16 to 22, except those specified in the 
schedule, shall be filled by the Sindh Public Service Commission 
through competitive process. Such posts are required to be 
advertised publically. In the case in hand, this mandatory mode, 
required under the rules, was not followed while notifying the 
Petitioner as a fresh appointee, who was already in police service in 
the rank of Sub-Inspector. The case of the Petitioner is fully 
covered by our judgment under review as he was given out of turn 
promotion 
and 
was 
given 
back 
dated 
seniority 
and 
his 
regularization or adjustment as DSP was not backed by any law 
which could confer power on the Competent Authority to treat him 
as a fresh appointee. The competent Authority shall forthwith post 
him as Sub-Inspector.  
CRP.No.193/2013 etc 
125 
198.  
We may observe that on 6.5.2013, two CMAs 
numbered as 245/2013 and 247/2013, containing list of other 
nine persons who were also appointed as D.S.P. without recourse 
to the provisions contained in the Rules, 1974, alongwith the 
Petitioner, were filed. The said Rules require that a post of BS-17 
can only be filled through Public Service Commission after 
advertisement. The Sindh Government and or the Competent 
Authority cannot bypass this mandatory requirement and 
substitute a parallel mechanism to appoint a person in BS.16 to 
22 against the language of these Rules, which are framed under 
the dictates of the Act as mandated under Article 240 of the 
Constitution. The Article 242 of the Constitution provides the 
mechanism for appointment of a Civil Servant through Public 
Service Commission. This Article is safety valve which ensures the 
transparent process of induction in the Civil Service. It provides 
appointment by Public Service Commission with the sole object 
that meritorious candidates join Civil Service. The Sindh 
Government through executive or legislative instruments can not 
withdraw any post from the purview of the Public Service 
Commission as has been done in the case of the DSPs, in negation 
to the command of Article 242 of the Constitution. For the 
aforesaid reasons, we hold that the Sindh Government shall make 
all the appointments in BS 16 to 22 through Public Service 
Commission.     
199.  
We, for the aforesaid reasons, hold that the Petitioner 
was rightly reverted to the rank of Sub-Inspector in terms of the 
letter of Dr. Muhammad Amin Yousuf Zai DIG (Establishment). 
The Competent Authority shall fix the inter-se seniority of the 
Petitioner with his batchmates. The Petitioner shall restore all the 
CRP.No.193/2013 etc 
126 
benefits including salaries drawn by him as DSP to the Sindh 
Government from the date of the judgment under review. The 
concerned Department shall deduct and/or adjust the aforesaid 
benefits in installments from his future salary within a span of 03 
years and report compliance.   
200.  
The Petitioner shall be issued a Show Cause Notice 
under Section 17(1) of the Contempt of Court Ordinance 2003, 
read with Article 204 of the Constitution, calling upon him to 
furnish explanation as to why contempt proceedings should not be 
initiated against him for willful defiance of the orders dated 
30.08.2012 and 07.05.2013, besides the impugned judgment. The 
office shall make a separate file of the proposed contempt 
proceedings by assigning it a separate number. This Review 
Petition is dismissed with costs. The suit of the Petitioner stands 
abated being barred not only under Article 212 of the Constitution, 
but also under Article 189. 
201.  
We must record our displeasure over the officers, who 
were instrumental in extending undue favours to the Petitioner. We 
direct 
the 
competent 
Authority 
to 
initiate 
departmental 
proceedings against the then CCPO Karachi, the then Additional 
Chief Secretary Sindh and members of the Committee, who 
recommended the Petitioner for appointment as DSP, and report 
compliance within two weeks for our perusal in Chambers. 
 
 
 
C.P. No.968/2014  
 
(Saleem Ullah vs. Province of Sindh etc) 
202.  
The Petitioner’s Counsel, Mr. Tariq Mehmood, has 
contended that the Petitioner was appointed as Assistant Executive 
Engineer (AEE) in BS-17 in Karachi Water and Sewerage Board 
CRP.No.193/2013 etc 
127 
(KW&SB) whereas one Muhammad Harris was appointed as AEE 
in BS-17 in the Communication and Works (C&W) Department. 
The Petitioner and Muhammad Harris applied for mutual transfer. 
On 12.6.1995, their application for mutual transfer was allowed. 
Thereafter, on application of Muhammad Harris, he was absorbed 
in KW&SB, whereas the Petitioner was absorbed in C&W 
Department. The Petitioner was not a Civil Servant and therefore, 
he could not have been transferred and absorbed in C&W 
Department either under Section 24 of the Civil Servants Act or 
under Rule 9(1) of the Rules 1974.   
203.  
It is settled law that a non-Civil Servant cannot be 
conferred the status of a Civil Servant, which the Petitioner has 
acquired by absorption in C&W Department. Therefore, the 
Petitioner was rightly de-notified. Consequent upon the detailed 
reasons given in the judgment under review, the absorption of the 
Petitioner in the C&W Department, was un-warranted. This Civil 
Petition, for the aforesaid reasons, merits dismissal. The Petitioner 
shall immediately join his parent Department i.e. KW&SB and 
Muhammad Harris shall be reverted back to his parent department 
i.e. C&W Department.  The Petitioner as well as Muhammad Harris 
shall be entitled to their inter-se seniority with their batchmates 
from the date on which they were transferred from their parent 
Departments.  
Crl.R.P.40/2014 
(Ata Muhammad Memon vs. Chief Secy. Govt. of Sindh) 
 
204.  
The Petitioner, in person, contended that on 4.8.1987, 
he was appointed as Assistant Engineer in KDA on temporary 
basis. On 27.4.1989, he was transferred on mutual basis to Public 
CRP.No.193/2013 etc 
128 
Health Engineering and was posted in Hyderabad, where he was 
working till he was de-notified in compliance with the judgment 
under review.  The Petitioner stated that after his de-notification he 
had joined KMC as the KDA, which was his parent department, 
had devolved. He submitted that he had not been allowed to join, 
inter alia, on the ground that the judgment under review does not 
cover his case.  
205.  
We have laid down the principles which covers the 
case of the Petitioner. The absorption of the Petitioner in the Public 
Health Engineering, was un-warranted. Therefore, we direct the 
Chief Secretary Sindh, to create a surplus pool in KMC and the 
Petitioner shall be posted in the pool till he is posted against a 
vacancy in the Department. He would be entitled to his inter-se 
seniority with his batchmates with whom he was working in KDA 
at the relevant time before his absorption to the Public Health 
Engineering. The Petitioner shall be given salary from the date he 
was de-notified, within 15 days from the date of communication of 
this judgment. At the same time the Officer with whom he was 
mutually transferred, shall be reverted back to his parent 
Department with the same benefits as detailed above. The Chief 
Secretary Sindh shall submit compliance report for our perusal in 
Chambers. The Review Petition is disposed of in above terms.   
 
 
 
Crl.R.P.No.41/2014  
 
 
(Ali Murad Abro vs. Chief Secy. Govt. of Sindh) 
206.  
The Petitioner, in person, stated that he was appointed 
on 28.7.1987, as Assistant Engineer BS-17 in the KDA on 
permanent basis. On 26.2.1995, he was mutually transferred to 
C&W Department on a joint application, with Muhammad Ameer, 
who was also Assistant Engineer in BS-17 in the C&W 
CRP.No.193/2013 etc 
129 
Department. After the judgment under review, he was de-notified 
and sent back to the Local Government Department and since then 
he has not been given posting. He has stated that Muhammad 
Ameer, who was mutually transferred with him, has also not been 
repatriated to the C&W Department in compliance with the 
judgment.   
207.  
The Chief Secretary Sindh is directed to ensure that 
the judgment of this Court is implemented in letter and spirit and 
the Petitioner and Muhammad Ameer are transferred forthwith to 
their respective parent Departments. They would be entitled to 
their salaries from the date of their de-notification as well as their 
inter-se seniority with their batchmates from the date of their 
mutual transfer.  The Review Petition is disposed of in above terms. 
The Chief Secretary shall report compliance within 15 days from 
the date of communication of judgment.  
 
 
 
Crl. R.P. No.77 of 2013 
 
(Talib Magsi vs. Province of Sindh etc) 
 
 
208.  
The learned Counsel for the Petitioner contends that 
the Petitioner originally was an Officer in the Local Government 
Department, Balochsitan, and was promoted to BS-18. He claims 
that the Petitioner’s son was attacked and was moved to Agha 
Khan Hospital, Karachi, for medical treatment. He applied for his 
transfer to Sindh Government on humanitarian ground. It is 
claimed that under Section 10 of the Balochistan Civil Servants 
Act, he was transferred to Sindh Government and on 5.10.2010 he 
was appointed as Director Food on deputation. On 3.9.2010, the 
Chief Minister Sindh, in exercise of powers under Section 24 of the 
Act of 1973, on an application by the Petitioner, who was on 
CRP.No.193/2013 etc 
130 
deputation, absorbed him in the Sindh Government in Ex-PCS 
cadre. After the judgment under review, the Petitioner was de-
notified by the Sindh Government and was ordered to be 
repatriated to Balochistan.  
209.  
We have dealt with the issue of absorption of a Civil 
Servant. The Petitioner hails from Balochistan. The Chief Minister, 
Sindh cannot order absorption of any Civil Servant of a different 
Province who is on deputation to Sindh Government. Section 24 of 
the Act or Rule 9(1) of the Rules of 1974, cannot be resorted to for 
appointment by transfer of a Civil Servant who does not belong to 
the Sindh Government. The Petitioner could neither have been 
transferred permanently to the Sindh Government, nor could he be 
absorbed in Ex-PCS cadre for the reasons given in the impugned 
judgment. The Petitioner did not have the status of a Civil Servant 
while serving on deputation in Sindh Government nor could he 
continue on deputation for an indefinite period. His absorption in 
Ex-PCS cadre was contrary to the language of Section 5 of the Act, 
which does not authorize the Chief Minister to appoint the 
Petitioner by offending the Rules of 1974.  
210.  
We, for the aforesaid reasons, do not find any merit in 
the Review Petition which is accordingly dismissed. Pendency of 
any proceedings of the Petitioner before any forum will not come in 
the way of Sindh Government in repatriating the Petitioner to the 
Province of Balochistan.  
 
Crl.RP. No.70/2013. (Yar Muhammad Bozdar.) 
Crl.R.P.No.72/2013. (Syed Altaf Ali and others) 
 
211.  
The Petitioners claim to have been nominated by the 
Chief Minister as Assistant Commissioners under Rule 5(4)(b) of 
CRP.No.193/2013 etc 
131 
the West Pakistan Civil Service (Executive Branch) Rules, 1964. 
The grievance of the Petitioners is that on account of paras 102 to 
111 of the judgment under review, their nominations were 
withdrawn and they were reverted back to their parent 
Departments. We have already dealt with this issue in the 
aforesaid paras. During the hearing of the Review Petition, we have 
noticed that no mechanism has been provided for nomination of 
the officers. It is the sole discretion of the Chief Minister to 
recruit/nominate 
an 
employee 
to 
the 
post 
of 
Assistant 
Commissioner in exercise of powers under Rule 5(4)(b) of the Rules 
of 1964. The discretion to exercise the powers needs to be 
structured by framing policy, which should encourage merit. On 
query from the learned Additional Advocate General, Sindh as to 
how the employees are chosen from different Departments for 
nomination as Assistant Commissioners; he, on instructions, 
informed the Bench that no policy has been framed and it is the 
sole discretion of the Chief Minster.  These Rules are not meant to 
ignore transparency in nomination as such appointments are 
made by bypassing the regular procedure provided for appointment 
of a Civil Servant in BS-17. We have noticed that most of these 
appointments were made amongst the employees, who have been 
excluded from the purview of the Public Service Commission. 
Therefore, in absence of policy for nomination to the post of 
Assistant Commissioner, blue eyed of the high ups will get these 
jobs. We, therefore, direct the Sindh Government to frame a 
transparent policy for nomination of these officials, which could 
ensure that meritorious employees of the Departments mentioned 
in the Rules of 1964, could be nominated on merits, after proper 
scrutiny.         
CRP.No.193/2013 etc 
132 
212.  
The Petitioners were found in excess of the quota as 
per the list provided to us by the Sindh Government and, therefore, 
for the reasons already recorded by us in the judgment under 
review, they were not entitled to continue in their Offices. These 
Review Petitions having no merit are, accordingly, dismissed. 
 
 
C.M.A.No.4568 of 2013 in C.R.P.No.Nil of 2013. 
(Rafique Ahmed Abbasi vs. Chief Secy. Govt. of Sindh) 
 
213.  
The Petitioner, through these proceedings, seek review 
of the judgment, inter alia, on the ground that he was lawfully 
granted out of turn promotion and after the judgment under review 
of this Court, he was reverted to the rank of Inspector though his 
batchmates had been extended favours and their seniority was 
fixed one step higher than the Petitioner. The issue of out of turn 
promotion, which has been declared unconstitutional, cannot be 
allowed to be reopened. However, the grievance of the Petitioner in 
regard to his seniority can be examined by the Sindh Service 
Tribunal.  
 
214.  
Therefore, in order to meet the ends of justice, we 
remand this case to the Sindh Service Tribunal, which shall treat 
this Review Petition as Service Appeal and shall decide the same in 
accordance with law, in line with the principles laid down in this 
judgment and the judgment under review. The Petitioner shall be 
at liberty to amend the proposed Appeal appropriately, if so 
advised. The Tribunal shall, after issuance of notice to the 
Petitioner and his other batch-mates, determine their seniority in 
accordance with law. This Review Petition is disposed of in the 
above terms.  
 
 
 
CRP.No.193/2013 etc 
133 
SUIT NO. 1029 OF 2014  
(Muhammad Ali Baloch vs. Province of Sindh etc) 
 
 
215.  
During the hearing of the Criminal Review Petition 
filed by the Sindh Government as well as by the beneficiaries, we 
directed the Sindh Government to provide us the list of the 
beneficiaries who had obtained restraining orders against the 
notification issued by the Sindh Government in compliance with 
the judgment under review.  
216.  
The Sindh Government provided us the list of the Civil 
Suits and the Constitution Petitions filed by the Petitioners and 
many other Civil Servants, challenging the notification of the Sindh 
Government dated 02.07.2013, issued in compliance with the 
judgment under review.  
217.  
We were sent the list by the Sindh Government in 
which Suit No. 1029 of 2014, filed by Muhammad Ali Baloch was 
also mentioned. The Plaintiff Muhammad Ali Baloch had obtained 
restraining order by seeking suspension of the notification dated 
2.7.2013 of the Sindh Government. We may observe that 
Muhammad Ali Baloch was repatriated to his original post of 
Assistant Director (Computer Branch) on declaration that he was 
wrongly absorbed in the regular Police Force.  
218.  
This Notification dated 02.07.2013 was challenged by 
him by way of Departmental Appeal (Representation) in terms of 
Section 23 of the Sindh Civil Servants Act and, subsequently, in 
Appeal No. 144/2013, before the Sindh Service Tribunal. The 
Service Tribunal, after hearing the parties, held that the judgment 
under review was fully applicable to the case of Muhammad Ali 
Baloch and his absorption in the regular Police Force was found to 
CRP.No.193/2013 etc 
134 
be unwarranted. Against this judgment, a Civil Petition for leave to 
Appeal No. 74-K/2014 was filed by Muhammad Ali Baloch before 
this Court, which was fixed before a three member Bench at 
Karachi, and one of us (Justice Amir Hani Muslim) was heading 
the Bench. On 25.02.2014, the matter was fixed before the Bench 
at Karachi Registry. The Counsel of Muhammad Ali Baloch, Dr. 
Farough Naseem, after arguing the matter at some length, 
withdrew the Appeal on instructions of Muhammad Ali Baloch, 
who was present in Court. On withdrawal of the Appeal, the 
judgment of the Service Tribunal attained finality. 
219.  
Since we were given the number of Suits/Petitions 
pending in which the High Court of Sindh has passed restraining 
orders, we noticed that Suit No.1029 of 2014 was filed by 
Muhammad Ali Baloach in the High Court of Sindh. This Suit was 
not mentioned in the list provided to us by the Registrar of the 
High Court of Sindh, therefore, on our direction the office inquired 
from the Registrar as to why the said Suit has not been mentioned 
in the list. We were informed that it was by mistake of the office of 
the High Court of Sindh and accordingly the R&P of the suit was 
called. After perusal of the record of the Suit, we noticed with 
shock that the Plaint was presented in the office of the High Court 
of Sindh on 23.6.2014 and permission for fixation of the case was 
granted by an Additional Judge (Justice Aamir Raza Naqvi) in an 
unprecedented manner on the same day. The matter was placed 
before Justice Saeeduddin Nasir with the following three office 
objections:- 
 
 
“1. 
Proper Court fee to be affixed. 
 
 
2. 
List of legal heirs be filed. 
 
 
3. 
Addresses for service be filed.”  
 
CRP.No.193/2013 etc 
135 
220.  
Justice Saeeduddin Nasir, on the same day, while 
suspending Notification dated 2.7.2013, issued by the Sindh 
Government in compliance with he judgment under review of this 
Court, passed the following order :- 
“1. 
Granted. 
2. 
One week time is allowed to the plaintiff to affix 
the court fee on the plaint.  
3. 
It is contended that the plaintiff was appointed 
as A.D (Computer) in Special Branch, Police 
Department in BPS-17, later on the said post 
was abolish vide order dated 11.12.2013 and 
the 
plaintiff 
was 
appointed 
as 
Deputy 
Superintendent of Police. Subsequently, vide 
notification 
dated 
13.11.2007 
he 
was 
appointed as S.P. The learned counsel for the 
plaintiff states that due to order passed by the 
Hon’ble Supreme Court in Original Criminal 
No.89 of 2011 the plaintiff was likely to be 
demoted from the post of S.P to D.S.P. which 
was being hold by the plaintiff prior to being 
out of turn promoted as S.P. but the defendant 
vide notification dated 2.7.2013 demoted the 
plaintiff as Assistant Director (Computer) which 
post has been abolished in 2003. It is further 
contended by the learned counsel for the 
plaintiff that the plaintiff had completed the 
field training command as Police Officer for 
more than ten years and qualifies to hold the 
post of D.S.P. 
In view of the submission made by the learned 
counsel for the plaintiff, let notice be issued to 
the defendant for a date to be fixed by the 
office after summer vacation. In the meanwhile 
the operation of the notification dated 2.7.2013 
to the extent of the plaintiff is suspended.” 
 
221.  
The suit filed by Muhammad Ali Baloch contained the 
same reliefs in substance, which were denied to him up to this 
Court. The prayers in the Suit are reproduced herein below:- 
a. To declare that the plaintiff is entitled to hold the 
post of “Deputy Superintendent of Police” and 
defendants are liable to revive his status; 
b. Permanent Injunction restraining Defendants from 
removing/banishing the plaintiff from his aforesaid 
post of “Deputy Superintendent of Police” and 
interim and final directions to deliver the post of 
Deputy Suptt. of Police in whatsoever manner; 
c. Cost of the proceedings throughout; 
CRP.No.193/2013 etc 
136 
d. Any other relief which this Honourable Court deem 
proper may also be granted. 
 
222.    
In the plaint, it was pleaded that the Service Tribunal 
had passed judgment on 30.12.2013 dismissing his Appeal. 
However, since the post of Assistant Director (Computer) had been 
abolished, he filed C.P.No.D-388 of 2014 and C.P.No.D-2660 of 
2014 in the High Court of Sindh, which are pending adjudication. 
He pleaded that since no orders were passed in the Petitions due to 
pendency of a large number of cases in the High Court of Sindh, he 
made representation to the Chief Minister but to no avail. 
Consequently, he had filed suit, inter alia, on the ground that his 
absorption in Police Force is similar in nature to the case of 
Ataullah Chandio, who was from Law Department and was allowed 
to be absorbed in Police Force. 
223.  
Muhammad Ali Baloach, after exhausting all his legal 
remedies up to this Court, has started a fresh round of litigation 
on the pretext that the post of Assistant Director (Computer) was 
abolished, therefore, he was not given posting. In the first place, 
abolition of the post of Assistant Director (Computer) does not 
render him surplus owing to the fact that an IT Wing exists in the 
Police Department, and he could have been posted in the said 
Wing by creating a post of Assistant Director (Computer), or in any 
other department of the Sindh Government, in terms of Rule 9-A of 
the Rules of 1974.  He, however, could not seek relief as prayed 
either in the Suit or in the Constitution Petitions pending in the 
High Court of Sindh. The findings recorded by the Service Tribunal 
against Muhammad Ali Baloch, have attained finality on his 
withdrawal of the Civil Petition from this Court. The Service 
Tribunal in its detailed judgment has held that Muhammad Ali 
CRP.No.193/2013 etc 
137 
Baloch was wrongly appointed by transfer under Rule 9(1) as DSP 
in regular Police in defiance of the restrictions contained under the 
Recruitment Rules, which do not permit his horizontal movement 
to penetrate in Provincial Police Service as DSP which is a distinct 
cadre. Muhammad Ali Baloch was appointed as Assistant Director 
in (Computer Wing), which cannot be construed to be an 
appointment in regular Police Force. We have already interpreted 
the scope of Rule 9(1) of the Rules of 1974. Muhammad Ali Baloch 
was not eligible to be appointed by transfer as DSP for want of 
required qualification, experience, expertise as contained under 
Rule 9(1) read with Rule 3(2), 7 and 8 of the Rules of 1974. He was 
rightly repatriated to the Computer Wing in Police Department.  
224.  
In the Suit, Muhammad Ali Baloch has concealed the 
fact that he approached this Court challenging the judgment of the 
Sindh Service Tribunal and on 25.02.2014, his Counsel, after 
arguing the Petition at some length, had withdrawn the Civil 
Petition in his presence.  
225.  
Once a Civil Servant has exhausted all the legal 
remedies, he cannot initiate a second round of litigation by filing 
Constitution Petition or Suit on the same subject. The learned High 
Court, in the first place, should not have entertained the Suit or 
Petition in view of the bar contained under Article 212 of the 
Constitution, as Muhammad Ali Baloch is a Civil Servant and the 
issues raised before the High Court, fall within the domain of the 
Sindh Service Tribunal, which had already recorded the findings 
against him. It is established law that a Civil Servant cannot raise 
any issue which pertains to terms and conditions of his service, 
particularly, when such issue has finally been decided by this 
CRP.No.193/2013 etc 
138 
Court. The learned Judge (in Chambers) Mr. Saeeduddin Nasir, 
has not applied his mind while entertaining the Suit on 23.6.2014, 
and had suspended the notification issued by the Sindh 
Government, which was issued in compliance with the judgment of 
this Court, maintained by the Sindh Service Tribunal, and his Civil 
Petition against the judgment of the Tribunal had attained finality 
on its withdrawal. The learned Judge (in Chambers) has not even 
examined the contents of the plaint which refer to the judgment of 
the Sindh Service Tribunal and in a very casual manner has 
passed the order suspending the notification.  
226.  
We are at a loss to understand as to how the learned 
Judge (in Chambers) could sit in Appeal against the findings of this 
Court in the face of the language of Article 189 of the Constitution 
which mandates that, “Any decision of the Supreme Court shall, to 
the extent that it decides a question of law or is based upon or 
enunciates a principle of law, be binding on all other Courts in 
Pakistan.”  If such practice is allowed to continue, it will render 
the hierarchy of this Court ineffective as mandated by the 
Constitution.  
227.  
For the aforesaid reasons, we hold that Muhammad Ali 
Baloch has willfully committed contempt of this Court by re-
agitating the issues through the Constitution Petitions No. D-388 
of 2014 and D-2660 of 2014,  and the Suit, which attained finality 
after the judgment of this Court and the Sindh Service Tribunal, as 
noticed hereinabove,  with the ulterior motive to defeat the findings 
of this Court.  His case is fully covered by the judgment of this 
Court in the case of Abdul  Majid and another  vs.  Qazi Abbas 
CRP.No.193/2013 etc 
139 
Hussain Shah (1995 SCMR 429), in which, in the similar 
circumstances, contempt proceedings were initiated by this Court. 
228.  
We therefore, direct the Office to issue Show Cause 
Notice to Muhammad Ali Baloch under Section 17(1) of the 
Contempt of Court Ordinance 2003 read with Article 204 of the 
Constitution calling upon him to explain as to why he should not 
be proceeded against for committing contempt of this Court. The 
proceedings filed by Muhammad Ali Baloch before the High Court 
of Sindh in Suit No. 1029/2014 and in Constitution Petitions No. 
D-388 of 2014 and D-2660 of 2014 stand abated. Sindh 
Government shall appoint him in any Department, within 15 days 
from the date of communication of this Judgment, as Assistant 
Director (Computer), which was his substantive post before his 
absorption in Sindh Police force as DSP and report compliance. He, 
however, will be entitled to inter-se seniority amongst his 
batchmates before his absorption. 
 
 
 
Suit No.519 of 2014  (Ali Ahmed Lund) 
 
 
229.  
In order to find out the latest status of different Suits 
and Constitutional Petitions filed by the Civil Servants before the 
High Court of Sindh after the orders dated 30.8.2012, 3.1.2014 
and the judgment under review, we asked the Registrar of the High 
Court of Sindh to provide us list of Suits and Constitutional 
Petitions filed before the High Court of Sindh.  While going through 
the list, we called for the R&Ps of Suit No.519 of 2014 and Suit 
No.1052 of 2014 and the connected High Court Appeals to examine 
as to whether the aforesaid orders of this Court are taken note of 
by the High Court of Sindh while entertaining the Civil Suits.  
 
CRP.No.193/2013 etc 
140 
230.  
We noticed that Suit No.519 of 2014 was filed by Ali 
Ahmed Lund who, in collateral proceedings, was ordered to be 
repatriated to his parent department in the Federal Government, 
when he was serving on deputation as D.C.O in the Sindh 
Government. We called the R&P of the suit, and upon perusal we 
noticed that he sought in the Suit alteration in his date of birth 
with the following prayer:-  
“a) 
Declare that as per Matriculation Certificate, 
NADRA record, and in the Service Record, the 
correct date of birth of plaintiff is 2.4.1956, and 
he is deemed to stand retired on 1.4.2016 and 
not on 1.4.2014 as per the erroneous Seniority 
List dated 25.9.2009. 
b) 
Declare that the Seniority List dated 25.9.2009 
of officers working in BS-20 under Respondent 
No.2 is null and void to the extent of the date of 
birth 
of 
the 
plaintiff 
which 
is 
wrongly 
mentioned as 2.4.1954 instead of 2.4.1956 as 
mentioned in Service Record.  
c) 
Direct the defendants to rectify the seniority list 
dated 25.9.2009 and mentioned the correct 
date of birth of the plaintiff which is 2.4.1956 
and duly corroborated by his Matriculation 
Certificate and CNIC issued by the NADRA and 
by service record.  
d) 
To restrain the defendants of any person acting 
through or under them from taking any coercive 
action against the plaintiff viz his retirement 
from service and service record which shows 
the correct age of the plaintiff as 2.4.1956 or by 
prematurely issuing Notification of Retirement 
and or acting upon the same prejudicially to the 
plaintiff on the basis of erroneous date of birth 
which is only reflected in seniority list. 
e) 
Damages against the defendants at Rs.110 
Million jointly and severely. 
f) 
For any other/additional relief(s) that this 
Hon’ble Court may deem fit and proper in the 
facts and circumstances of this case; 
g) 
Cost of the suit.”  
  
 
 
231.  
The suit was filed by him on 1.4.2014, pleading 
therein that he was born on 2.4.1956 and his date of birth was 
incorrectly recorded in the service record as 2.4.1954. In the 
CRP.No.193/2013 etc 
141 
pleadings, he admitted that he acquired knowledge of his incorrect 
date of birth in the year 2009 when seniority list was floated. He 
made representations at times for correction in his date of birth till 
26.11.2013 and since no response was received, therefore, he filed 
the Civil Suit.  
 
232.  
On perusal of the record, we further observed that on 
27.3.2014, Ali Ahmed Lund has filed a Constitutional Petition 
No.D-1566 of 2014 on the same subject with the following prayer:- 
 
a) 
To declare that as per Matriculation Certificate 
and NADRA record, the correct date of birth of 
the 
Petitioner 
is 
2.4.1956 
which 
has 
erroneously been entered/mentioned in his 
service record by the Respondent No.3 as 
2.4.1954 which is liable to be rectified/cured 
with immediate effect.  
 
b) 
To direct the Respondents to rectify the date of 
birth of the Petitioner in their record as 
2.4.1956 instead of 2.4.1954 and till the virtual 
correction, it may be read and understood as 
2.4.1956.  
 
c) 
To permanently restrain the Respondent No.3. 
or anyone else working on his behalf to issue 
any notification of the retirement of the 
Petitioner according to erroneous date of birth 
of 
the 
Petitioner 
i.e 
2.4.1954 
mentioned/entered in their record.  
 
d) 
To direct the Respondents to act in accordance 
with law and not to misuse/abuse of his 
official powers conferred upon them under the 
law.  
 
e) 
Any other relief (s) warranted by the facts and 
circumstances of the case.”  
 
233.  
Apparently, on his failure to get the interim relief in 
the Writ Petition in which notice was ordered by the learned 
Division Bench, he opted to file the aforesaid Civil Suit, concealing 
the fact that he had filed a Constitutional Petition prior to filing of 
the suit on the same subject.  
 
CRP.No.193/2013 etc 
142 
234.  
On 10.4.2014, he was granted interim order of status-
quo by the learned Judge in Chambers (Justice Nadeem Akhter) in 
the following terms:- 
“Learned Counsel for the plaintiff has filed a 
statement along with some documents, which are 
taken on record. The documents filed today show that 
the plaintiff is still working as the Secretary to 
Government of Sindh/Chairman Sindh Cooperative 
Housing Authority. It is urged that there is a serious 
apprehension that in case ad interim orders on this 
application are not passed, the plaintiff may either be 
removed from his service or any other coercive action 
may be taken against him by the defendant. The 
bailiff’s report dated 9.4.2014 shows that the 
defendants have been duly served. Till the next date 
of hearing, the defendants are directed to maintain 
status quo.  
 
 
To come up on 25.4.2014.”  
 
235.  
 On 29.5.2014, the learned Judge in Chambers 
(Justice Mohammad Shafi Siddiqui) while dismissing the suit 
passed the following order:- 
 
“Mr. Ghulam Akbar Jatoi Advocate undertakes 
to file power (of Attorney) on behalf of plaintiff.  
Adjournment application has been filed by the 
previous Counsel for the plaintiff who is stated to be 
unwell. The application is taken on record. Office is 
directed to assign CMA number to this application. 
However, the application is dismissed on account of 
the fact that plaintiff has engaged another Counsel. 
The plaintiff is also present in person who confirms 
that he has engaged Mr. Ghulam Akbar Jatoi. 
Learned Counsel for the plaintiff argued that 
this suit has been filed to rectify the error in the date 
of birth of the plaintiff as 2.4.1956 instead of 
2.4.1954. It is contended by Mr. Jatoi that alongwith 
the plaint they have filed certificate of Matric, Board of 
Intermediate, NIC as annexures and has also shown 
smart card recently issued. He also states that even in 
the old and new passports the date of birth is 
mentioned as 2.4.1956. He submits that it is the right 
of the plaintiff to get the date of birth corrected in all 
official records including the service record.  
Learned State Counsel has assisted this Court 
and submits that the Annual Confidential Report is 
being issued since he became civil servant and joined 
the service and he has been mentioning his date of 
birth as 2.4.1954 and as such this delay in 
rectification of the service record is uncalled for and it 
only smelts malafide. Learned State Counsel further 
submits that in terms of Rule 12A of the Civil Servants 
CRP.No.193/2013 etc 
143 
(Appointment, Promotion and Transfer) Rules, 1973 
the date of birth once recorded at the time of joining 
government service shall be final and thereafter no 
alteration in the date of birth of a civil servant shall be 
permissible.  
Learned Counsel for the intervener also relied 
upon recent pronouncement of Hon’ble Supreme Court 
and submitted that suit is not maintainable.  
Heard the learned Counsels and perused the 
record. Admittedly the certificates as well as the 
identity card which are annexed with the plaint show 
the date of birth of the plaintiff as 2.4.1956, however, 
the question before the Court is not the rectification of 
date of birth but in fact the question is as to whether 
such rectification can be made in the service record of 
the plaintiff. The plaintiff apparently passed CSS in 
1983 and became civil servant in 1984 and he has 
been, since then, maintaining his date of birth as 
2.4.1954. Previously before the amendment in the 
Civil Servants (Appointment, Promotion and Transfer) 
Rules, 1973 it was the privilege of the employee to 
rectify the date of birth in the record including the 
service record whereas after insertion of Rule 12A 
which was inserted by SRO 521(1)/2000 dated 31st 
July 
2000 
it 
is 
not 
permissible 
for 
the 
applicant/employee to get his date of birth rectified. 
This question came before the Hon’ble Supreme Court 
in the case of Ahmed Khan Dehpal vs. Government of 
Balochistan (2013 SCMR 759) wherein it is observed 
that after so many years the idea to have the date of 
birth altered appeared to be an afterthought of the 
civil servant. In this case also it is almost after 30 
years of service when it revealed to plaintiff that his 
actual date of birth is 2.4.1956. It was observed by 
the Hon’ble Supreme Court that the question was as 
to how the civil servant, who joined the service in 
1982, could not know about his actual date of birth 
despite the passage of more than two decades, 
especially when at various stages during his studies 
as well as service he filled many examination forms, 
pro formas as well as service book. In the judgment of 
the 
Hon’ble 
Supreme 
Court 
the 
case 
of 
the 
employee/civil 
servant 
was 
that 
even 
in 
the 
documents of Matric and Intermediate certificates date 
of birth was wrongly mentioned whereas in the 
instant case learned Counsel for the plaintiff pleaded 
that though the date is rightly mentioned, however in 
the service record it is wrongly mentioned as 2.4.1954 
instead of 2.4.1956. 
In view of the amendment in the Civil Servants 
(Appointment, Promotion and Transfer) Rules 1973 
such right of correction in the date of birth was taken 
away absolutely and it was clarified that once the 
date of birth in the record at the time of joining is 
mentioned the same shall be final and no alteration is 
permissible.  
Such insertion of 12A is logical as at the 
twilight of the career it could only be termed as 
malafide. The instant suit filed by the plaintiff is not 
CRP.No.193/2013 etc 
144 
simplicitor a correction of the date of birth in fact it is 
correction in date of birth in the service record. Had it 
been simple suit for declaration that his date of birth 
is to be rectified, Rule 12A of 1973 would not have 
been applied but in instant case, service record was 
sought to be corrected and in terms of Rule 12A of the 
Civil Servants (Appointment, Promotion and Transfer) 
Rules, 1973 such is barred. The strength and power of 
Rule 12A is statutory.  
The issue of maintainability of the suit was 
framed earlier and parties were also put on notice. 
Even on the last date the plaintiff was present 
alongwith his Counsel and also today he is present 
alongwith 
his 
newly 
engaged 
Counsel 
and 
I 
appreciate that he and his Counsel tried to assist the 
Court. As far as the maintainability of the suit is 
concerned, the point involved has already been 
decided in the case referred above and in view of the 
judgment of the Hon’ble Supreme Court the suit is not 
maintainable. The suit is therefore, dismissed along 
all pending applications.     
The plaintiff seems to have reached the age of 
superannuation on 1.4.2014 and hence any salary, 
perks, privileges or any other benefits availed 
subsequent to the age of superannuation shall be 
returned forthwith.” 
 
236.  
On 3.6.2014, Ali Ahmed Lund, filed High Court Appeal 
No.157 of 2014, challenging the order of the learned Single Judge, 
who dismissed his Suit. On 11.9.2014, the High Court Appeal was 
fixed for Katcha Pashi before learned Division Bench-V, comprising 
Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman, which 
was allowed in the following terms:- 
 
“Today parawise comments have been filed on 
behalf of Respondent No.2 which are taken on record. 
Learned counsel for Appellant states that impugned 
order was passed on 29.5.2014 when inter-alia the 
injunction application was fixed for hearing. Per 
learned Counsel, no proper opportunity was given to 
the counsel for the Appellant to argue his case. In 
view of the pro and contra pleas raised before the 
learned trial court requires evidence, thereore, after 
setting aside order dated 29.5.2014, we remand the 
case to the learned trial court to decide the 
controversy involved afresh. The notification however, 
issued by the Respondent regarding the appointment 
of officer in place of the Appellant shall not be effected 
or otherwise be prejudiced in any manner. Appeal 
stands disposed of a/w the pending application. 
Petition No.d-2386/2014 tagged with this case is 
hereby de-tagged and the same be heard on 
23.1.2014” 
 
CRP.No.193/2013 etc 
145 
237.  
On 21.11.2014, after remand another Injunction 
Application was filed by the Plaintiff Ali Ahmed Lund, who stood 
retired on 1.4.2014, pursuant to the notification issued by his 
parent Department i.e. Ministry of Trade and Commerce, which 
was allowed, by the learned Judge (Mr. Justice Saeeduddin Nasir) 
in Chambers, in the following terms:- 
“In view of above observations the operation of order 
dated 9.4.2014 is suspended till the next date of 
hearing. 
 
The defendant No.4 may allow joining the 
plaintiff as well as posting order in accordance with 
joining order dated 12.9.2014. 
 
This order shall not have any adverse affect on 
the appointment of any officer in place of the 
appellant.” 
 
238.  
We have noticed that the Counsel representing the 
State did bring to the notice of the learned Judge in Chambers of 
the High Court the case of Ahmed Khan Dehpal vs. Government of 
Balochistan (2013 SCMR 759), which was not taken note of. We 
can safely assume that neither the learned Judge in Chambers nor 
the Appellate Bench have carefully read the provisions of Section 4 
(1) of the Federal Service Tribunal Act 1973 which confers 
exclusive jurisdiction upon the Federal Service Tribunal to 
adjudicate upon the matters relating to the terms and conditions of 
service of a Civil Servant inclusive of the disciplinary proceedings. 
Article 212 of the Constitution places fetters on the jurisdiction of 
a Civil Court and a High Court to entertain matters relating to 
terms and conditions of service of a Civil Servant. We have already 
dealt with the scope of Article 212 of the Constitution separately. 
The mode of correction in the date of birth of a Civil Servant is 
provided under Rule 12A of the Civil Servants (Appointment, 
Promotion and Transfer) Rules, 1973, which is part of terms and 
conditions of service of a Civil Servant and cannot be resorted to 
CRP.No.193/2013 etc 
146 
through the Civil Suit. It has also been well established by now 
that a Civil Servant cannot seek alteration in his date of birth at 
the verge of his retirement or otherwise in a suit and in this 
respect principles laid down  in the case of Dr Muhammad Aslam 
Baloach vs Government of Balochistan (2014 SCMR 1723) are fully 
attracted.  
 
239.  
Ali Ahmed Lund was a Civil Servant from the Federal 
Government, serving in Trade and Commerce Group since 1984 
and was on deputation with the Sindh Government when he filed 
the Constitutional Petition and the Suit before High Court of 
Sindh. He was required to approach the Federal Service Tribunal 
for redressal of his grievance. The learned Judge in Chambers and 
the Appellate Bench misdirected themselves while holding that 
issue of alteration in date of birth requires factual enquiry and, 
therefore, Suit was competent. By Section 3(3) of the Sindh Service 
Tribunals Act, the Tribunal has been conferred exclusive powers of 
a Civil Court while holding enquiry. This aspect of the matter lost 
sight by the two forums while passing the orders in Suit and in the 
High Court Appeal coupled with the bar of jurisdiction under 
Article 212. The learned Judge in Chambers overlooked the fact 
while directing the Sindh Government to allow joining and give 
posting order to Ali Ahmed Lund who was on deputation. A 
deputationist cannot seek his posting in a borrowing department 
once he was relieved of his duties for any reason. The High Court 
of Sindh was not competent to entertain Suit of the nature for 
correction of the date of birth, which form part of terms and 
conditions of service in view of the bar contained in Article 212 of 
the Constitution.  
 
CRP.No.193/2013 etc 
147 
240.  
We for the aforesaid reasons, are of the considered 
view that Ali Ahmed Lund, who remained on deputation in Sindh 
for more than 15 years according to the brief note provided to us 
by S&GAD, could not competently file a Civil Suit or Constitutional 
Petition which he had withdrawn on 27.10.2014, seeking alteration 
in his date of birth that too at the verge of his retirement. Thus for 
the aforesaid reasons, the Civil Suit No.519 of 2014 stands abated. 
However, it will be open for the Plaintiff to approach this Court 
through a Review Petition, if he feels aggrieved of this judgment. 
 
 
 
Suit No.1052 of 2014 (Mir Aijaz Hussain Talpur) 
 
241.  
Mir Aijaz Hussain Talpur, an officer of the District 
Management Group, who was serving on deputation in the 
Province of Sindh, filed Suit in the High Court of Sindh. He was 
posted as Secretary, Co-operation and on his transfer, he filed the 
aforesaid Civil Suit on 10.6.2014, with the following prayer:- 
 
a) 
To 
declare 
that 
the 
notification 
No.SO-
I(SGA&CD)-3/65/93 dated 23.11.2013 issued 
by the defendant No.1 on a closed weekly 
holiday i.e Saturday the 23rd November, 2013 
thereby removing/transferring the plaintiff from 
the post of Secretary Co-operation, being in 
gross violation of rule 35 of the Sindh 
Government Rules of Business, Esta Code, Civil 
Servants Act, 1973 the Rules made thereunder 
and Articles 5, 9, 189 & 190 of the Constitution 
of Pakistan is ab-initio, illegal unlawful and 
void and as such is liable to be struck down.  
 
b) 
To grant mandatory injunction, suspend the 
operation 
of 
the 
impugned 
order 
No.SO(SGA&CD)-8/2/2005 Karachi dated the 
2nd January 2014 being ab-initio as well as to 
suspend all the orders, transfers postings and 
whatever and direct the defendant No.1 to 
reinstate the plaintiff forthwith on his original 
posting i.e Secretary Co-operation.  
 
c) 
To grant mandatory injunction, suspend the 
operation of the order dated 3.6.2014, vide 
No.SGA&CD-8/2014 
government 
of 
Sindh 
Services, Karachi and declare the same ab-
CRP.No.193/2013 etc 
148 
initio null and void and direct the defendant 
No.11 and 5 to transfer and post the plaintiff 
as Secretary Co-operation, Government of 
Sindh. 
 
d) 
To grant permanent injunction restraining the 
defendants, 
their 
subordinates 
officers 
successors, authorities or any other officer 
claiming on their behalf from taking any 
coercive action against the plaintiff including 
but no limited to taking any coercive actions, 
departmental action transferring or initiating 
any criminal case FIR or placing the Plaintiff as 
OSD or to do anything which is detrimental to 
the reputation dignity as well as career of the 
Petitioner.  
 
e) 
To 
hold 
and 
declare 
that 
neither 
any 
suspension order dated 10.1.2014 against the 
plaintiff 
is 
in 
force 
nor 
his 
suspension 
notification 13.5.2014 was notified by Sindh 
Government timely as such the plaintiff is not 
lying under suspension and he is entitled to 
hold 
the 
post 
of 
Secretary 
Cooperation 
Department 
wherefrom 
he 
was 
illegally 
removed and suspension notification dated 
13.5.2014 does not carry any legal value being 
null and void. 
 
f) 
To grant such other better relief which this 
Honorable Court may deem fit and proper 
under the circumstances of the case.  
 
g) 
To grant cost of the suit and cost.  
 
h) 
Any other relief which honorable Court may 
deem fit to grant.”  
 
 
242.  
On 21.11.2014, the learned Judge in the Chambers 
(Justice Saeeduddin Nasir) granted ad interim relief to the Plaintiff, 
relevant para of the order is reproduced below:- 
 
“2. 
In view of the submissions made by the 
learned counsel for the plaintiff, the defendants are 
restrained from taking any departmental action 
including transferring or initiating any criminal case 
against defendant or placing the plaintiff as OSD or to 
do anything which is detrimental to the reputation and 
dignity of the plaintiff.  
 
3&4. The operation of the Notifications No.SO-1 
(SGA&CD)-3/65/93 dated 23.11.2013, impugned 
order 
No.3/1-0/2013 
D-1, 
Islamabad 
dated 
10.01.2014 Order No.SO-1(SGA&CD)-8/2/2005 dated 
13.5.2014 is suspended till next date of hearing.” 
 
CRP.No.193/2013 etc 
149 
243.  
One Shahzar Shamoon, Defendant No.3 in the Suit, a 
civil servant from Sindh, challenged the above order in High Court 
Appeal No.288 of 2014, which was fixed on 24.11.2014, before a 
learned Division Bench of the High Court of Sindh, comprising 
Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman. After 
hearing, the learned Bench passed the following order, partially 
suspending the order dated 21.11.2014 passed in Suit No.1052 of 
2014 of Mir Aijaz Talpur:- 
“1. 
Urgent application is allowed. 
2. 
Deferred for the time being. 
3. 
Exemption is allowed subject to all just 
exceptions.  
4&5. Learned counsel for the appellant has drawn 
our attention to the order dated 10.1.2014 passed in 
C.P.No.D-4971/2013 whereby petition was dismissed 
wherein Notification No.SOI(S&GAD)-3/65/93 dated 
23.11.2013 has been challenged, certified copy of the 
order is enclosed as Annexure ‘C/1’ at page 99 of the 
file. Learned Counsel for the appellant contends that 
respondent 
No.1 
filed 
another 
petition 
bearing 
C.P.No.D-2386/2014 and almost with the same 
prayer the respondent No.1 filed Suit No.1052/2014. 
The said suit was fixed in Court on 3.4.2014 and the 
Court has directed the counsel for respondent No.1 to 
satisfy the Court on the maintainability of that suit, 
however, 
the 
respondent 
No.1 
by 
suppressing 
material facts and by misleading the trail Court has 
succeeded 
to 
obtain 
impugned 
order 
dated 
21.11.2014. Learned Counsel for the appellant has 
drawn our attention to an order dated 11.9.2014 
passed in HCA No.157 of 2014 operative part of the 
said order is read as under:- 
“The notification however, issued by the 
respondent regarding the appointment of 
officer in place of the appellant shall not 
be effected or otherwise be prejudiced in 
any manner. Appeal stands disposed of 
a/w the pending application.” 
The learned counsel for the appellant has also drawn 
our attention to the order passed on the same day by 
the same learned Judge in Suit No.519/2014, 
wherein it was observed that “this order shall not 
have any adverse affect on the appointment of any 
officer in place of the appellant.” 
 
Issue notice to the respondents, learned 
Advocate General, Sindh and learned DAG for 
9.12.2014. Till the next date of hearing, operation of 
the impugned order dated 21.11.2014 passed in Suit 
No.1052/2014 enclosed as Annexure ‘A’ shall remain 
suspended.” 
 
CRP.No.193/2013 etc 
150 
244.  
On 24.11.2014, the matter was placed before Justice 
Mohammad Shafi Siddiqui, who passed the following order:- 
“This is an urgent application filed along with 
application under Order VII Rule 11 CPC. Learned 
Advocate General contends that in pursuance of the 
order passed by the Hon’ble Supreme Court the suit is 
not maintainable.  
 
 
Notice to the plaintiff for a date to be fixed in 
the first week of December, 2014. 
 
 
Mr. Faisal Siddiqui files Vakalatnama on behalf 
of defendant No.3 which is taken on record.” 
 
245.  
On 1.12.2014, all the applications in the Suit were 
fixed before Justice Mohammad Shafi Siddiqui, and the following 
order was passed:- 
“1. 
Granted. 
2. 
Mr. Farooqui waives notice of the application, 
copy whereof has been supplied to him. Counter-
affidavit/rejoinder, if any, be filed and exchanged 
before next date.  
 
Since on account of sad demise of Justice (R) 
Saleem Akhtar the Court work is suspended, the 
matter is adjourned to 4.12.2014 when learned 
counsel for the parties are directed to assist the Court 
regarding maintainability of the suit as prima facie it 
appears that the relief that is being sought in this suit 
has already been held to be not maintainable in terms 
of order passed by learned Division Bench in 
C.P.No.D-4971 of 2013, operative part of which is 
available at page 235 of the file. Even otherwise the 
plaintiff has challenged the transfer and posting, 
which are within the ambit of terms and conditions of 
service, and as such there are serious questions 
regarding maintainability of the suit.” 
 
246.  
We, after perusal of the aforesaid record in suits and 
H.C.A, are of the considered view that the issue raised by the 
parties relates to their terms and conditions of service and cannot 
be entertained by a High Court either in its Constitutional 
jurisdiction or in its Original Civil jurisdiction or in High Court 
Appeal, being barred under Article 212 of the Constitution. We, for 
the reasons already recorded by us separately on the scope of 
Article 212 of the Constitution, are of the considered view that the 
CRP.No.193/2013 etc 
151 
Suit No.1052/2014, filed by Mir Aijaz Hussain Talpur and the High 
Court Appeal No.288/2014, filed by Shahzar Shamoon, stand 
abated for want of jurisdiction of the High Court. However, it would 
be open for the aggrieved party to approach the concerned Service 
Tribunal or this Court in Review, if so advised.  
 
247.  
Before parting with this judgment, we have noticed 
that a civil servant cannot approach the Service Tribunal unless he 
exhausts the remedy of departmental appeal/representation under 
Section 23 of the Sindh Civil Servants Act, 1973. Section 4 (i) (a) of 
the Sindh Service Tribunals Act, 1973, provides that a Civil 
Servant can approach the Tribunal, subject to his exhausting 
remedy under Section 23 of the Sindh Civil Servants Act, after 
lapse of 90 days from the date on which such appeal/application 
was so preferred. In other words, a Civil Servant aggrieved by an 
order of the department has to file a representation or Appeal 
within 30 days of passing of such order and if the said authority 
does not decided his appeal/representation within 90 days, he can 
prefer an appeal before the Tribunal, after lapse of time as 
contained under Section 4(a) of the Sindh Service Tribunals Act. 
These provisions of Section 23 of the Sindh Civil Servants Act and 
Section 4 of the Sindh Service Tribunals Act require to be re-
examined after insertion of Article 10A in the Constitution, as it 
restricts a Civil Servant from seeking expeditious remedy from the 
Tribunal which is constituted under the command of the 
Constitution.  
248.  
We have also examined the service laws of other 
Provinces and the Federation and find that they have similar 
provisions in their service laws, as contained in Sindh Service 
CRP.No.193/2013 etc 
152 
laws. The provisions of Section 23 of the Sindh Civil Servants Act 
and the Section 4 of the Sindh Service Tribunals Act, restrict a 
Civil Servant to get efficacious and expeditious remedy against the 
order of the department till the expiry of almost 120 days. After the 
promulgation of Article 10-A, we find it imperative to re-examine 
the existing law which apparently bars the filing of appeal in the 
Service Tribunal before the passage of mandatory 90 days, but 
practically for 120 days. The law also needs to be looked afresh, 
because writ jurisdiction in the matters relating to terms and 
conditions of service against the executive by the aggrieved Civil 
Servant is barred under Article 212 of the Constitution.   
249.  
Moreover, this Court has also time and again 
emphasized upon reinforcement of good governance and strict 
observance of rules by the public functionaries. In the case of Syed 
Mehmood Akhter Naqvi vs. Federation of Pakistan (PLD 2013 SC 
195), this Court has clearly reiterated the settled principles of good 
governance by stating that the public functionaries are not obliged 
to follow illegal orders of higher authorities. The principle has since 
been reiterated in order to enforce good governance and adherence 
to rule of law in public service.  
250.  
However, a situation could and does arise, in which a 
civil servant may face wrath and vendetta of his superiors, if he 
refuses to carry out the illegal orders. In such a situation, he has 
the only right or option to make a representation etc to the 
concerned authority to seek redress of the wrong committed 
against him, but in many such cases his representation may be 
ignored or outright rejected by the authorities under the political 
influence or for ulterior motives. In that case, an aggrieved Civil 
CRP.No.193/2013 etc 
153 
Servant is left with no option but to wait for mandatory 120 days, 
enabling him to file an appeal etc before the Tribunal. However, in 
the intervening period, an aggrieved Civil Servant faces un-
compensable hardship and damage to his career, name and 
reputation.  
251.  
 As a result of existing disadvantages, cumbersome 
and prolonged processes of seeking remedies and relief from the 
administration or Service Tribunal, the honest, efficient and law-
abiding Civil Servants are frequently left with a helpless situation 
of facing victimization at the hands of the administration and 
political executive, which tremendously affect their morale, 
motivation, character and even their prospects touching the 
pinnacle of career by the dint of honesty, efficiency and diligence. 
252.  
 In view of the aforesaid problems faced by the Civil 
Servants due to lengthy process of filing appeal in the Tribunal and 
availing of relief, it is imperative to provide an efficacious and 
expeditious alternate remedy to the Civil Servants by way of 
allowing them to approach the Service Tribunal, Federal or 
Provincial, without waiting for a period of 90 days, as contained 
under Section 4 (i)(a) of the Service Tribunals Act, by preferring an 
Appeal against the orders. Therefore, we are of the view that 
following issues are required to be answered at the touchstone of 
Article 10-A of the Constitution:- 
1. 
Whether Section 4(i)(a) of the Service Tribunals 
Act, restricting a Civil Servant from filing appeal 
to the Tribunal after lapse of 90 days is violative 
of the spirit and command of Article 10-A of the 
Constitution.  
 
2. 
Whether time frame provided by Section 4 of the 
Service Tribunals Act, debarring an aggrieved 
Civil Servant to approach the Service Tribunal 
amounts to denial of the relief to him in terms 
of Articles 4, 9 and 25 of the Constitution.  
CRP.No.193/2013 etc 
154 
 
253.  
We, therefore, for the aforesaid reasons, feel it 
necessary to take up these issues in suo motu jurisdiction under 
Article 184 (3) of the Constitution, in separate proceedings as the 
issues, inter alia, are of public importance and have far reaching 
effects on the service structure of the Civil Servants in the 
Federation and the Provinces.  
254.  
This judgment shall also be sent to the Chief Justices 
of all the High Courts through Registrars for their information, 
perusal and circulation amongst all the Hon’ble Judges. This 
judgment shall also be sent to the Chief Secretaries of all the 
Provinces as well as the Secretary, Establishment Division, 
Government of Pakistan, Islamabad, with the direction that they 
shall streamline the civil service structure in light of the principles 
laid down in this judgment. In addition, the office shall also send 
copies of this judgment to the Chairmen of the Federal Service 
Tribunal, Islamabad and the Sindh Service Tribunal, Karachi,  
through their Registrars, for information and compliance.   
 
 
 
 
 
 
 
Approved for reporting 
Sohail/Saeed/** 
 
 
Announced in open Court on 05.01. 2015 at Karachi. 
 
 
 
 
 
 
 
 
