IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE MAQBOOL BAQAR 
MR. JUSTICE IJAZ UL AHSAN 
 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 
2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
(On appeal against the judgment dt. 14.03.2017 passed by the High Court of Balochistan 
Quetta in CPs. No. 1163 and 1172 of 2016).   
 
 
 
Aziz ul Allah and others 
Muhammad Akber Khan and others 
Muhammad Qasim Mengal  
Nazar Muhammad and another 
Appellant(s) 
 
VERSUS 
 
Govt. of Balochistan thr. its Chief Secretary, Quetta 
and another.  
 
Respondent(s) 
 
 
For the Appellant(s) 
: Mr. Wasim Sajjad, Sr. ASC 
Mr. Mehr Khan Malik, AOR. 
(in CA 588/17) 
 
Khawaja Haris Ahmed, Sr. ASC 
Mr. Mehr Khan Malik, AOR. 
(in CA 589/17) 
 
Mr. Qasim Mengal, In person 
(in CA 590/17) 
 
Malik M. Qayyum, Sr. ASC 
Ch. Akhtar Ali, AOR 
(in CA 710/17) 
 
For the Respondent(s) 
 
: 
 
Mr. 
Amanullah 
Kanrani, 
AG 
Balochistan 
Mr. Ayaz Khan Swati, Addl. AG 
Balochistan 
Raja Ibrahim Satti, Sr. ASC 
(Rs 3-7 in CA 588 & Rs 2-6 in 589/17) 
 
Syed Ali Zafar, ASC 
Mr. Zahid Nawaz Cheema, ASC 
(Rs 32-37 in CA 590/17) 
 
Ms. Asma Jehangir, Sr. ASC 
(Rs 2-6 in CA 710/17) 
 
In CMAs 
: Raja Ibrahim Satti, Sr. ASC 
(CMA 3198/17) 
 
 
 
Date of Hearing 
: 26.05.2017 (Judgement Reserved) 
 
…………………………. 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
2 
J U D G M E N T  
 
 
 
 
 
EJAZ AFZAL KHAN, J.- These appeals with the leave of 
the Court have arisen out of the judgment dated 14.03.2017 of the 
High Court of Balochistan, Quetta whereby it dismissed the 
Constitution Petitions filed by the appellants as being not 
maintainable.  
2. 
 
Brief facts of the case are that appellants were 
appointed as Assistant Executive Officers on qualifying the 
examination held under the aegis of Balochistan Public Service 
Commission vide notification dated 22.10.2002. They worked as such 
till 2008. They were then absorbed in Balochistan Civil Service 
Executive Branch vide notification dated 03.04.2008. They continued 
as such till the time they were directed to report to S&GAD 
Balochistan for further orders vide notification dated 15.12.2016. They 
challenged the aforesaid notification in the High Court but it was 
dismissed as being non-maintainable as mentioned above. Points 
raised and noted at the time of grant of leave read as under :-  
“After hearing the learned counsel for the petitioners, leave is 
granted inter alia to consider whether the constitution petitions filed 
by the petitioners before the learned High Court were incompetent 
for the reason that since they were civil servants and sought 
enforcement of the terms and conditions of their service, the 
learned High Court’s jurisdiction was barred under Article 212 of the 
Constitution of the Islamic Republic of Pakistan, 1973; whether the 
jurisdiction to attend to and resolve the grievance agitated by the 
petitioners before the learned High Court was only vested with this 
Court in light of the law laid down in the judgment reported as 
Contempt Proceedings Against Chief Secretary, Sindh and others 
(2013 SCMR 1752); and whether the dismissal of the petitioners’ writ 
petitions on the ground of maintainability in view of the reasons 
assigned therein was apt and appropriate.  
The petitioners are directed to implead the interveners who 
had moved an application(s) before the learned High Court as 
respondents in the matter and notice be issued to them.” 
 
3. 
 
Learned ASCs appearing on behalf of the appellants 
contended that case of the appellants is not hit by the case 
reported as Contempt proceedings against the Chief Secretary Sindh 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
3 
and others, Ali Azhar Khan Baloch. Vs. Province of Sindh  and  
Muzaffar Hussain Vs. Federation of Pakistan (supra), therefore, their 
petitions before the Balochistan High Court could not have been 
dismissed as being not maintainable. The learned ASC next 
contended that even if it is assumed that the writ petitions filed by 
the appellants being related to the terms and conditions of service 
were not maintainable before the High Court, they could have been 
remitted to the Service Tribunal for decision in accordance with law. 
Merger of AEOs in Balochistan Civil Service and Balochistan 
Secretariat Service, the learned Sr. ASC added, as notified by the 
S&GAD vide notification dated 03.04.2008 on the recommendations 
of the Provincial Selection Board and approval of the competent 
authority was perfectly in accordance with law, therefore, it could 
not be reversed on the basis of the judgments rendered in the cases 
of Contempt proceedings against the Chief Secretary Sindh and 
others, Ali Azhar Khan Baloch. Vs. Province of Sindh  and  Muzaffar 
Hussain Vs. Federation of Pakistan (supra),  when appeals of the 
respondents raising similar issues were pending before this Court. 
Absorption of the appellants, the learned Sr. ASC went on the argue 
could not be held illegal on any account when they possessed the 
requisite qualification and were appointed as AEOs on qualifying 
examination held under the aegis of the Public Service Commission. 
No distinction, the learned Sr. ASC added, could be drawn between 
the Assistant Executive Officers (AEOs) and the Balochistan Civil 
Service Officers and Balochistan Secretariat Service Officers when 
their qualifications, syllabus of the examination, pattern of papers 
and the process of selection under the Public Service Commission 
are alike and even identical. Another imperative, the learned Sr. ASC 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
4 
maintained, necessitating the absorption of the appellants in the 
Balochistan Civil Service and Balochistan Secretariat Service was that 
they had no channel of upward progression beyond BPS-18. The 
learned ASC next contended that when in Civil Review Petitions Nos. 
90, 452, 285, 286, 287, 288 and 289 of 2016 in Civil Appeal No.184-L of  
2013 a five members Bench of this Court permitted the petitioners in 
the said petitions to raise their grievances before the competent 
fora, the appellants too cannot be deprived of their such right, 
therefore, the appeals filed by the appellants be sent back to the 
Service Tribunal for decision in accordance with law.  
4. 
 
The learned A. G. Balochistan appearing for the 
Government of Balochistan did not seriously oppose any of the 
contentions of the learned Sr. ASCs appearing on behalf of the 
appellants. The learned ASCs appearing on behalf of the 
respondents contended that it has been settled in the cases of 
Contempt proceedings against the Chief Secretary Sindh and others, 
Ali Azhar Khan Baloch. Vs. Province of Sindh and  Muzaffar Hussain 
Vs. Federation of Pakistan (supra) that a civil servant of a non-cadre 
post cannot be absorbed against a cadre post when the latter is to 
be filled, under the rules, through a competitive process. The learned 
ASC next contended that absorption of the appellants in the BCS or 
BSS cannot be protected under Section 11-A of the Balochistan Civil 
Servants Act when they were not rendered surplus as a result of 
reorganization, abolition of a department, Office or abolition of a 
post in pursuance of any government decision. The learned ASC next 
contended that the summary approving absorption of the 
appellants was not only a deviation from the law but also beyond 
the power and competence of the caretaker Chief Minister. Such 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
5 
deviation, the learned ASC added, is also hit by the dicta of this 
Court rendered in the cases of Khawaja Asif. Vs. Federation of 
Pakistan  (PLD 2014 SC 206) and Syed Mahmood Akhtar Naqvi and 
others. Vs. Federation of Pakistan and others  (PLD 2013 SC 195). Hell 
of a difference, the learned ASC added, lies between the 
qualifications, syllabus of the examination, pattern of papers and the 
process of selection of Assistant Executive Officers and those of BCS 
and BSS Officers under the Public Service Commission, therefore, the 
absorption of the former in the latter cannot be justified on any 
account. Change of cadre, the learned ASC argued, without a 
change in law was inconceivable, therefore, the set up so structured 
cannot sustain itself. Absence of a space for upward progression, the 
learned ASC maintained, also appears to be a lame excuse when 
posts of Executive Officers and Director Finance and Accounts and 
those of Executive Officers and Directors Planning and Economics in 
BS-18 and BS-19 were created pursuant to the amendments in AEO 
Rules. The learned ASC by concluding his arguments submitted that 
where the appellants failed to point out any error much less patent in 
the judgments rendered in the cases of   Contempt proceedings 
against the Chief Secretary Sindh and others, Ali Azhar Khan Baloch. 
Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan 
(supra), their appeals, even if they are treated as review petitions, 
are liable to be dismissed.  
5. 
 
We have carefully gone through the record and 
considered the submissions of the learned Sr. ASC and ASCs for the 
parties as well as the learned A. G. Balochistan.  
6. 
 
Before we deal with the questions urged by the learned 
ASC for the parties and the learned Advocate General and the 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
6 
learned 
Additional 
Advocate 
General 
for 
Government 
of 
Balochistan it is worthwhile to see what is the method of recruitment 
of the officers in Civil Service (Executive Branch). Rules 5, 6 and 7 of 
the Balochistan Civil Service (Executive Branch) Rules, 1984 furnish 
answer to the question which read as under:-  
“5. Method of Recruitment. (1) Recruitment to the Service 
shall be made in the following manner :-  
 
a) 
by initial recruitment on the recommendations of the 
Commission 
based 
on 
the 
result 
of 
a 
competitive 
examination conducted by it in accordance with Appendix 
‘A’ to these rules; or  
 
b) 
by promotion.  
 
2) 
Fifty percent of the vacancies in the Service shall be 
filled by initial recruitment and the rest by promotion.  
 
3) 
Vacancies to be filled by promotion shall be filled as 
follows:- 
 
a) 
87 ½ percent of such vacancies shall be filled from 
among members of the Balochistan Tehsildari Service whose 
names appear in the Select List ‘A’ to be maintained in 
accordance with the provisions of clause (a) of sub-rule (4). 
 
b) 
The remaining 12 ½ percent of such vacancies shall 
be filled from among persons whose names appear in Select 
List ‘B’ to be maintained in accordance with clause (b) of 
sub-rule(4) of this rule.  
 
4) 
Government shall maintain --- 
 
a) 
a Select List ‘A’ in form I annexed to these rules, which 
shall be prepared in consultation with the Board of Revenue, 
of the Tehsildars who are considered fit for promotion to the 
Service; 
 
b) 
a Select List ‘B’ in form 2 appended to these rules of 
persons who hold substantive posts of Superintendents, 
Personal 
Assistants, 
Stenographers, 
working 
in 
the 
Balochistan 
Secretariat, 
attached 
departments, 
Commissioners Office and Subordinate Offices and who are 
considered fit for promotion to the Service.  
 
5) 
Selection of Officers for being brought on the Select 
Lists referred to in sub-rule 4 shall be strictly on merit with 
particular reference to fitness for higher responsibilities.  
 
6) 
No entry shall be made in the Select List to be 
maintained under the provisions of sub-rule(4) of this rule nor 
shall an entry appearing in the Lists be removed or the order 
in which the names appear in the Select List without the 
previous approval of the Commission.  
 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
7 
7) 
In making an appointment from among the persons 
whose names appear in the Select List to be maintained 
under the provisions of sub-rule (4), the order in which the 
names appear in the Select List, as far as may be followed.  
 
8) 
Promotion against the departmental quota shall 
made first and the vacancies meant for initial recruitment 
shall be filled later; provided that under no circumstances 
the quota fixed for initial requirement shall be filled in by 
promotion.  
 
6. Age. – (1) No person shall be appointed to the Service by 
initial recruitment who is less than twenty one years or more 
than twenty five years of age;  
 
2) 
For the purpose of this rule, age shall be reckoned.  
 
a) 
where recruitment is to be made on the basis of a 
written examination on the 1st January of the year in which 
the examination is held; and  
 
b) 
in other cases, on the last date fixed for submission of 
applications for appointment;  
Provided that --- 
 
i) 
Upper age limit for appointment to the Service by 
initial recruitment shall be relaxable for three years upto 
31.12.1984 according to Government of Balochistan Services 
& 
General 
Admn 
Department 
Notification 
No. 
S-III-
27(127)/S&GAD-74, dated 8.12.1979.  
 
ii) 
in the case of persons serving in connection with the 
affairs of the Federation, who are domicile in Balochistan 
and persons serving in connection with the affairs of the 
Province of Balochistan with at least four years service as 
such, the upper age limit shall be thirty five years.  
 
7. Qualification  --- (1) No person shall be appointed to the 
Service by initial recruitment unless he is a graduate from a 
recognized University.  
 
2) 
No person not already in Government service, shall 
be appointed to the Service unless he produces a 
certificate from the principal academic officer of the 
academic institution last attended, and also certificate of 
character from two other responsible persons, not being his 
relatives, who are well acquainted with his character and 
antecedents.  
 
3) 
No person shall be appointed by initial recruitment to 
the Service unless he is declared to be physically fit by a 
Government Medical Officer not below the rank of a District 
Health Officer.”  
 
   
 
7. 
 
What is the method of recruitment of Sections Officers in 
Balochistan Secretariat Service Rules, 1982. Rule 5 is relevant in this 
behalf which reads as under :-  
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
8 
5. Method of Recruitment. – Recruitment to the service shall 
be made as follows :-  
 
a) 
Fifty percent of the vacancies shall be filled by initial 
recruitment 
based 
on 
the 
result 
of 
a 
competitive 
examination held by the Commission, in the prescribed 
subjects.  
 
b) 
The remaining fifty percent of the vacancies shall be 
filled by promotion in the following manner – 
 
i) 
Five-seventh of the vacancies by selection on merit 
with due regard to seniority from among the 
members of the Provincial Secretariat (Ministerial 
Service) holding the posts of Superintendents or, if no 
such Superintendents are considered suitable for 
appointment to the Service, then amongst the 
members of the Provincial Secretariat (Ministerial 
Service) holding the posts of Assistants with at least 
twelve years service as such; and  
 
ii) 
Two-seventh of the vacancies by selection on merit 
with due regard to seniority from among the Private 
Secretaries of the Balochistan Secretariat or if no such 
Private 
Secretaries are 
considered 
suitable 
for 
appointment to the Service, then from amongst the 
Senior Scale Stenographers of the 
Balochistan 
Secretariat with at least twelve years service as such.” 
 
 
8. 
 
The Balochistan Secretariat (Section Officers) Service 
Rules, 1982 were repealed by the Balochistan Secretariat (Grade 16 
and above) Service Rules, 2002. The method of initial recruitment 
according to the Rules of 2002 has been provided by Rule 5 which 
reads as under:-  
 
“5. Method of Recruitment: Appointment to the post in Service 
shall be made as specified in the Appendix.” 
The appendix of the said rules gives the details which read as 
under:-   
APPENDIX 
(See Rules 3(3), 5 and 7(1)). 
 
S. 
N
o. 
Nomenclature of 
Post 
Minimum 
Qualificatio
n for initial 
recruitment 
Method of Recruitment. 
1. 
Administrative 
Secretary B-21 or 
BPS-21 post 
- 
By selection on merit from a panel of 
officers 
(B-20) 
of 
the 
Balochistan 
Secretariat Service who possess 22 years 
service in B-17 and above and have 
successfully completed regular course 
at 
Pakistan 
Administrative 
Staff 
College/National Defence College.  
 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
9 
2. 
Administrative 
Secretary B-20 or 
BPS-20 post 
 
By selection on merit from amongst four 
officers 
(B-19) 
of 
the 
Balochistan 
Secretariat Service who possess 17 years 
service in B-17 and above and have 
successfully completed regular course 
at NIPA.  
3. 
Additional 
Secretary B-19 or 
BPS-19 post.  
 
By selection on merit from amongst 
three officers (B-18) of the Balochistan 
Secretariat Service who possess 12 years 
service in B-17 and above.  
4. 
Deputy Secretary 
B-18 
or 
BPS-18 
post.  
 
a)   40% post of the total shall be filled by 
promotion from amongst members of 
the 
Balochistan 
Secretariat 
Service 
(Under Secretary/Section Officer) who 
possesses five years service as such.  
b)   40% post of Deputy Secretaries in the 
Balochistan Secretariat shall be reserved 
for members of the APUG and BCS (EB).  
c)   20% posts of the total shall be filled in 
by transfers of suitable officers from 
attached departments of government.  
   
5. 
Section Officer B-
17 or BPS-17 post.  
Graduate 
from 
a 
recognized 
University.  
a)   87% posts of Section Officers shall be 
reserved for members of the Balochistan 
Secretariat Service in the ratio of 50% by 
initial recruitment and 50% by promotion 
from 
amongst 
Superintendents 
and 
Private Secretaries of the Balochistan 
Secretariat Service in the following 
manner:- 
 
i)  70% from amongst Superintendents of 
Balochistan Secretariat Service or, if no 
such Superintendents are considered 
suitable for appointment to the service 
then 
from 
amongst 
Assistants 
of 
Balochistan Secretariat Service with at 
least 15 years service as such, and  
ii)   30% from amongst the Private 
Secretaries of Balochistan Secretariat 
Service or, if no such Private Secretaries 
are considered suitable for appointment 
to the service, then from amongst senior 
scale Stenographers/personal Assistants 
of Balochistan Secretariat Service with at 
least 15 years service as such.  
 
b)  13% post of Section Officer shall be 
reserved for BCS/EB and by transfer from 
amongst 
officers 
of 
the 
attached 
departments of Government in the ratio 
of 70% and 30% respectively.   
6. 
Superintendent B-
16 or BPS-16 post.  
 
By promotion from amongst Assistants of 
the 
Balochistan 
Secretariat 
Service 
having five years experience as such.  
7. 
Private Secretary 
B-16 
or 
BPS-16 
post.  
 
By promotion from amongst Senior Scale 
Stenographers/Personal Assistant B-15 of 
the 
Balochistan 
Secretariat 
Service 
having five years experience as such.  
 
 
What is the method of initial recruitment of Assistant Executive 
Officers (Finance and Accounts) Balochistan has been provided by 
Rule 5 of the Balochistan Finance and Accounts Group Service Rules, 
2001 and the appendix added thereto which read as under :-  
 
“5. Method of Recruitment. Appointment to the service shall be 
made by initial recruitment as specified in the Appendix based on the 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
10 
recommendations of the Commission based on the result of a 
competitive Examination conducted by its in accordance with the 
syllabus prescribed for BCS/BSS. 
 
  
S. No. 
Name of Post 
and Grade 
Minimum 
qualification 
prescribed for appointment by 
initial recruitment 
Method 
of 
recruitment 
1. 
Assistant 
Executive 
Officer 
(Finance & 
Accounts) (B-
17) 
Graduate from recognized 
University 
By initial 
recruitment. 
 
 
 
 
 
 
 
      Sd/- 
 
 
 
 
 
    (Asmatullah Kakar) 
 
 
 
 
 
Deputy Secretary (Reg:) 
 
 
 
 
 
 
S&GAD. 
 
2. 
Executive Officer (Finance 
and Accounts) (B-18). 
- 
By promotion from amongst the 
Assistant 
Executive 
Officer 
(Finance and Accounts) B-17 on 
seniority-cum-fitness with five years 
service as such provided he has 
cleared 
the 
departmental 
examination.  
3. 
Director (Finance and 
Accounts) B-19 
- 
By promotion from amongst 
holder of the post of Executive 
Officer (Finance and Accounts) 
on seniority-cum-fitness with at 
least seven years service as such. 
 
By Order of 
Chief Secretary 
Government of Balochistan” 
 
 
9. 
 
Perusal of the rules reproduced above and the 
appendix added thereto shows how the officers in the Balochistan 
Civil Service Executive Branch and Balochistan Secretariat (Section 
Officers) Service are appointed, how long they stay on probation, 
how are they promoted, what are the conditions therefor, what is the 
percentage of the vacancies to be filled by initial recruitment or by 
promotion from amongst the members of the service holding posts in 
lower scales and what are the requisites therefor. Any other mode of 
appointment is alien to the rules and so is absorbtion of a civil servant 
of a non-cadre post against a cadre post. This aspect was 
highlighted by the Chief Secretary of the Province in the summary 
proposing the absorption of Assistant Executive Officers of Finance 
and Account and Planning and Economics groups. But the caretaker 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
11 
Chief Minister without realizing that he had no power and 
competence under the Balochistan Civil Servants Act 1974 and the 
rules made thereunder proceeded to approve the summary 
absorbing the Assistant Executive Officers of both the groups in 
Balochistan 
Civil 
Service 
(Executive 
Group) 
and 
Balochistan 
Secretariat (Section Officers) Services. Such absorption is sought to 
be protected by invoking section 11A of the Balochistan Civil 
Servants Act but the application of this provision could only be 
invoked where a civil servant is rendered surplus as a result of 
reorganization or abolition of a department, office or a post in 
pursuance of any decision of the government. In this case the rules 
regulating appointment by initial recruitment, promotion and transfer 
in the Balochistan Civil Service (Executive Branch) and the 
Balochistan Secretariat (Section Officers) Service are still intact as no 
amendment has been made to squeeze in any intruder, therefore, 
individual or en-bloc absorption from any other group of service, 
being essentially against law, cannot be upheld. In the case of 
Contempt proceedings against the Chief Secretary Sindh and others 
(2013 SCMR 1752) this Court, while deciding a similar issue, held as 
under: 
“126. 
From the above discussion, the aforesaid legislative 
instruments on  the  issue  of  absorption  are liable   to  be  struck  
down being violative of Constitutional provisions referred to 
hereinabove, therefore, we hold as under:-- 
 (i) 
That the Sindh Government can only appoint a person by 
absorption by resorting to Rule 9A of the Rules of 1974. 
(ii) 
Sindh Government cannot order absorption of an 
employee who is a non-civil servant, however, an employee of an 
autonomous body can be absorbed in Sindh Government subject 
to conditions laid down under Rule 9-A of the Rules of 1974. 
(iii) 
Sindh Government cannot absorb a civil servant of non-
cadre post to any cadre which is meant for the officers who are 
recruited through competitive process. 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
12 
(iv) 
Any backdated seniority cannot be granted to any 
absorbee and his inter-se seniority, on absorption in the cadre shall 
be maintained at the bottom as provided under the Rules 
regulating the seniority. 
(v) 
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. 
(vi) 
The legislature cannot enlarge the definition of "civil 
servant" by appointing a non-civil servant through transfer on the 
basis of absorption conferring him status of civil servant pursuant to 
the impugned legislation which is violative of the scheme of civil 
service law as provided under Articles 240 and 242 of the 
Constitution.” 
The principle laid down in the paragraph reproduced above was 
reiterated in the case Ali Azhar Khan Baloch. Vs. Province of Sindh 
(supra) by holding as under: 
“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 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 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 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
13 
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 Rules 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 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 
preconditions laid under Rule 9-A of the Rules are met. 
120.  
At the time of hearing of Petitions No.71 of 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 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 
C.R.P. 409 of 2013 Mr. AqailAwan for the petitioner 1 - 3 Criminal R.P.81 
of 2013 and C.R.P. 412 of 2013 
121.  
It was contended by MessrsAqilAwan, ShoaibShaheen, 
Muhammad MunirPeracha 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 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
14 
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 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. 
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 
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.” 
 
10. 
 
The argument that another imperative necessitating the 
absorption of the appellants in Balochistan Civil Service and 
Balochistan Secretariat Service was that they had no channel of 
upward progression beyond BPS-18, appears to have no force both 
legally and factually when the posts of Executive Officers and 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
15 
Director Finance and Accounts and those of Executive Officers and 
Director Planning and Economics in BPS-18 and BPS-19 were created 
pursuant to the amendments made in the Balochistan Finance and 
Accounts Groups Service Rules 2001 and the Balochistan Planning 
and Economics Group Service Rules 2001 vide notification dated 
21.11.2005.  
11. 
 
The argument that no distinction could be drawn 
between the Assistant Executive Officers and the Balochistan Civil 
Service officers and the Balochistan Secretariat Service officers when 
their qualifications, syllabus of examination, pattern of papers and 
the process of selection under the Public Service Commission are 
alike and even identical does not appear to be correct when on 
comparison the syllabus, pattern of papers and process of selection 
of the latter appear to be more extensive. Even if they be alike or 
identical no provision of law and the rules would justify such 
absorption unless of course the law and the rules as observed above 
are amended.  
12. 
 
The argument that when in Civil Review Petitions Nos. 90, 
452, 285, 286, 287, 288 and 289 of 2016 in Civil Appeal No.184-L of 
2013 a five-member bench of this Court permitted the petitioners in 
the said petitions to raise their grievances before the competent 
fora, the appellants cannot be deprived of their such right, therefore 
the appeals filed by the appellants be sent back to the Service 
Tribunal for decision in accordance with law has left us unmoved 
because in those cases the controversy raised required decision of 
the competent fora whereas the controversy raised in this case has 
been settled once and for all as is evident from para 126 of the 
judgement rendered in the case of Contempt proceedings against 
CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421,  
2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 
16 
the Chief Secretary Sindh and others (supra) and paragraphs 117, 
118, 119, 120, 121 and 139 of the judgement rendered in the case of 
Ali Azhar Khan Baloch. Vs. Province of Sindh (supra). Such 
controversy having already been settled could more adequately be 
dealt with by this Court through a review petition than through a 
petition before the High Court under Article199 of the Constitution or 
through an appeal before the Service Tribunal as held in para 153 
and 154 of the judgement rendered in the cases of Ali Azhar Khan 
Baloch. Vs. Province of Sindh (supra).  
13.  
 
The short and long of what has been discussed above is 
that nothing during the course of arguments has been pointed out 
by the learned Sr. ASC for the appellants as could call for a change 
or modification in the judgements mentioned above. We, thus, by 
treating these appeals as review petitions and having heard them as 
such dismiss them.   
JUDGE 
JUDGE 
JUDGE 
 
Announced in open Court at Islamabad on 25.09.2017.  
 
JUDGE 
‘Not Approved for Reporting’ 
M. Azhar Malik 
 
