 
IN THE SUPREME COURT OF PAKISTAN 
(ORIGINAL JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
MR. JUSTICE AMIR HANI MUSLIM 
 
 
 
CRL. ORIGINAL PETITION NO.89/2011, CMA.309-K/2012, CMA.310-K/2012, 
Crl.M.As. 42-K/2012, 80-K/2012, 87-K/2012, 13-K/2013, CMA.2453/13, Crl. MA.29-
K/2013,  CMA.131-K/2013, Crl.M.As.185-K/2012, 225/2013, 226/2013, 227/2013, 
CMAs.244-K TO 247-K/2013, 257-K & 258-K/2013, Crl.M.A, 263/2013, Crl.MA. 
282 IN CRL. ORIGINAL PETITION NO.89/2011. 
CONSTITUTION PETITION NO.71/2011, CMAs. 5547/2013, 2560/2013, 2561-
2565/2013, 2112-2113/2013, 2706-2707/2013, IN CONST. PETITION NO.71/2011. 
 
CONSTITUTION PETITIONS NO.21/2013, 23/2003 & 24/2013.  
 
CIVIL PETITION NO.6-K/2011 & CMA. NO.278-K/2011, CIVIL APPEALS 
NO.98-K/2010, 100-K/2010, 12-K/2012 A/W CRL. M.As. 51-K TO 53-K/2012, CMA. 
2014/2013, CIVIL APPEAL NO.131-K/2010 A/W 241-K/2012. & CIVIL APPEAL 
NOS. 183-K TO 185-K/2011. 
  
CRL.M.A. 252/2013 IN CRL.M.A.98/2012 IN CRL.M.A. 339/2012. 
 H.R.C. NO. 12995-S/2011 AND H.R.C NO. 2103-G/2011 
 
(On appeal against the judgments in 
CA.183-K/11 =  dt. 17.02.2011, SST, Kcy. in SA.39/2008, 
CA.12-K/12   =  dt. 14.04.2011, SHC, Kcy in Const.P.D-932/09, 
CA.98/2010  =  dt. 23.02.2010, SST, Kcy. in SA.No.1/2009, 
CA.100-K/10 =  dt. 22.03.2010, SST, Kcy. in SA No.65/09, 
CA.131-K/10 =  dt. 31.03.2010, SST, Kcy. in SA No.94/09 and 
CP.6-K/2011 =  dt. 29.10.2010, SST,Kcy. in SA No.66/09) 
 
 
 
Crl. O.P. 89/2011 
: Contempt proceedings against Chief 
Secretary, Sindh 
 
 
CMA 309-K/2012 
: Application by the Prosecutors of 
Sindh 
for 
taking 
notice 
against 
deputation in Civil Service, Sindh  
 
 
CMA 310-K/2012 
: Application by Mehdi Hassan Solangi 
former, TMP against Secretary, Local 
Government for illegal deputation. 
 
 
Crl.M.A. 42-K/2012 
: Maqsood Ahmed Vs. Government of 
Sindh and others 
 
 
Crl. M.A. 80-K/2012 
: Application for striking out name of 
Agha Maqsood Abbas, DG Lyari 
Development Authority.  
 
 
Crl. M.A. 87-K/2012 
: Application for repatriation of Abdul 
Wahab Sheikh, Director IB. 
Crl.Org.P.No.89/11 etc.  
2 
 
 
Crl. M.A. 3-K/2013 & 
CMA 2453/2013 
: Application by Syed Mehmood Akhtar 
Naqvi 
 
 
Crl. M.A. 29-K/2013 
: Application by Mst. Rehmat Abbasi. 
 
 
CMA 131-K/2013 
: Application by Syed Mehboob Ali 
Shah 
 
 
CMA.185-K/2013 
: Application by Altaf Bijrani and others 
 
 
Crl.M.A. 225/2013 
: Application challenging the “Standing 
Order 
No.269/2012 
regarding 
seniority. 
 
 
Crl.M.A. 226/2013 
: Application against one Mirza Aamir 
Baig, Supdt. (Deputee) 
 
 
Crl.M.A.227/2013 
: Application by Shah Nawaz, Dy. 
Supdt. Prison. 
 
 
CMA.244-K/2013 
: Application by Dr. Azeem-ur-Rehman 
Meo, Addl. Secy. 
 
 
CMA.245-K/2013 
: Application 
by 
Sarwar 
Khan, 
Inspector.  
 
 
CMA.246-K/2013 
: Application by Imran Atta Sommro 
and Abida Lodhi, Addl. Secy. Home. 
 
CMA.247-K/2013 
: Application 
by 
Bahar-ud-Din, 
Inspector. 
 
 
CMA.257-K/2013 
: Application by Welfare Organization 
Officers for repatriation of Certain 
Officers.  
 
 
CMA.258-K/2013 
: Application against excess nominations 
in PCS cadre. 
 
 
Crl.M.A.263/2013 
: Application by Abdul Majeed Siddqui, 
DIG(Prisons). 
 
 
 
Crl.M.A.282/2013 
: Application 
by 
Aghar 
Masood, 
Controller of Building, KBCA. 
 
 
Constitution Petition No. 71/2011 
: Farooq Azam Memon etc Vs. Province 
of Sindh through Chief Secretary and 
others 
 
 
CMA.5547/2012 
: Application for impleadment by Dr. 
Muhammad Ali. 
 
 
CMAs.2560-2565, 2112 2113, 
2706 & 2707/2013 
 
: Applications a/w information regarding 
illegalities committed in appointments 
in Sindh Civil Services in various 
departments.  
 
 
Const. Petition No.21/2013 
: Ghulam Akbar & others  Vs. Province 
of Sindh and others 
Crl.Org.P.No.89/11 etc.  
3 
 
 
Const. Petition No.23/2013 
: Altaf Bijrani & others Vs. Province of 
Sindh and others 
 
 
Const. Petition No.24/2013 
: Syed Mehmood Akhtar Naqvi Vs. 
Govt. of Sindh and others 
 
 
Civil Petition 6-K/2011 
: Inayatullah Marwat Vs. Government of 
Sindh through Chief Secretary etc. 
 
 
Civil Appeal 98-K/2010 
: Government of Sindh through Chief 
Secretary and others Vs. Rafique 
Ahmed Abbbasi 
 
 
Civil Appeal 100-K/2010 
: Government of Sindh through Chief 
Secretary and others Vs. Mumtaz 
Ahmed Soomro 
 
 
Civil Appeal 131-K/2010 
: Government of Sindh through Chief 
Secretary and others Vs. Aslam Pervez 
Bhatti 
 
 
CMA.241-K/2012 in CA.131-
K/2010 
: Application 
for 
Impleadment 
of 
Moharram Ali Chandio & others 
 
 
Civil Appeal 183-K/2011 
: Zubair Pervez Ahmed Vs. Government 
of Sindh and others 
 
 
Civil Appeal 184-K/2011 
: Azim ur Rehman Khan MEO Vs. 
Province of Sindh through Chief 
Secretary and others 
 
 
Civil Appeal 185-K/2011 
: Asif Jehangir Vs. Province of Sindh 
through Chief Secretary etc 
 
 
CA 12-K/2012  
: Dr. Nasim ul Ghani Sahito and others 
Vs. Province of Sindh through Chief 
Secretary 
 
 
CMA 2014/2013 in CA.12-
K/2012 
: Application 
for 
impleadment 
of 
Muhammad Rizwan Soomro.  
 
 
Crl.M.A.51-K to 53-K  of 2012 in 
CA 12-K/2012 
: Applications for impleadment a/w 
concise statements of Sheraz Asghar, 
Shahid Hussain & Zamir Ahmed.  
 
 
HRC 12995-S/2011 
: Application by Imdad Ali, ASI and 
others 
 
 
Crl.Org.P.No.89/11 etc.  
4 
Attendance. 
Mr. Abdul Fateh Malik, AG(Sindh) 
Mr. M. Sarwar Khan, Addl. AG (Sindh) 
Mr. Adnan Karim, Addl. AG (Sindh) 
Mr. Irfan A. Memon, Adv.  
Mr. Naseer Jamali, Secy. (Services), Sindh. 
Mr. Sohail Qureshi, Addl. Secy. (Services), Sindh. 
Syed Asif Haider Shah, Secy. (Services), Sindh 
Mr. Mudasir Iqbal, Sp. Secy. (Home), Sindh. 
Mr. Ali Sher Jakhrani, AIG Legal 
(in all cases) 
 
Ch. Afrasiab Khan, Sr. ASC 
(For petitioner in Const.P.71/11, 21/13, for appellant in CA.12-K/12) 
 
Mr. M. S. Khattak, AOR  
(For petitioner in Const.P.21/13 also for Respdt. No.10&12 in Const.P.71/11, for respdt. Nos.10 & 11 in 
CA.12-K/12) 
 
 
Ch. Akhtar Ali, AOR 
(For petitioner in Const.P.71/2011, for appellant in CA.12-K/12) 
 
Dr. Farough Naseem, ASC 
(For Respdt. No.3 in Const.P.71/11, for interveners in HRC.12995-S/11) 
 
Mr. Mehmood A. Sheikh, AOR 
(For Respdt. No.3 & 6 in Const.P.71/11) 
 
Mr. Abrar Hassan, ASC 
(For Respdt. No.5 in Const.P.71/11, for respdt. Nos.4&6 in CA.12-K/12) 
 
Mr. Anwar Mansoor Khan, Sr. ASC 
(for Sheraz Asghar in CA.12-K/12, for applicant in Crl.M.A.52-K/12) 
 
Miangul Hassan Aurangzeb, ASC 
(For Respdt. No.6 in Const.P.71/11) 
 
Mr. Abbad-ul-Hasnain, ASC. 
(For Respdt. No.8 in Const.P.71/11, for respdt. No.9 in CA.12-K/12) 
 
Mr. Shabbir Ahmed Awan, ASC 
(For petitioner in CP.6-K/11, also for Respd. No.9 in Const.P.71/11, for Respdt. No.3 in 183 to 185-K/11, 
for applicant in CMA.80-K/12, Crl.M.A.263/13) 
 
Mr. Hashmat Ali Habib, ASC. 
(For Respdt. No.10 & 12 in Const.P.71/11, for respdt. Nos.10&11 in  
CA.12-K/12) 
 
Mr. M. Aqil Awan, Sr. ASC. 
(For Respdt. No.11&14 in Const.P.71/11, also for Appellant in CA.183-K  
to 185-K/11, Respt. in 100-K/10, for Lal Khan in CA.12-K/12) 
 
Mr. Muharram G. Baloch, ASC 
(For applicants in CMA.241-K/12, 185-K/13 & 248-K/13) 
 
Raja Muhammad Asghar, ASC 
(for respdt. No.3 in CA.12-K/12) 
 
Mr. Khalid Javed, ASC 
(for respdt. No.12, and for Shahid Hussain & Zamir Ahmed in CA.12-K/12,  
for applicant in Crl.MA.51-K/12, for Dr. Sarwat in CMA.309-K/12) 
 
Crl.Org.P.No.89/11 etc.  
5 
Mr. Yawar Farooqui, ASC  
(for applicant in CMA.80-K/12) 
 
Raja Abdul Ghafoor, AOR/ASC 
(for applicant in CMA.87-K/12 
Syed Mehmood Akhtar Naqvi (In person) 
(Const.P.24/2013) 
 
Dr. Azeem-ur-Rehman Meo (In person) 
(Petition No.10 in Const.P.23/2013, appellant in CA.184-K/11,  
applicant in 244-K/13) 
 
Syed Mehboob Ali Shah (In person) 
(applicant in CMA.131-K/13) 
 
Sarwar Khan, Inspector (in person) 
(applicant in CMA.245-K/13) 
 
Bahar-ud-Din Babar, Inspector (in person) 
(applicant in CMA.247-K/13) 
 
Mr. Khaleeq Ahmed, ASC 
 
Mr. Rasool Bux Samejo, Inspector  
 
Mr. Pervez Ahmed Sehar (In person) 
 
Syed Attaullah Shah, Addl. Dy. Commissioner. 
 
Mr. Ghulam Shabbir Jiskani, Hyderabad. 
 
 
Date of hearing 
:  
 16th to 19th, 29th & 30th April, 2013 
 
 
 
 
 7th, 8th & 9th May, 2013 
 
.-.-.-.-.-.-.-.-.-.- 
 
JUDGMENT  
 
 
AMIR HANI MUSLIM, J.- Through these proceedings, the 
appellants/petitioners/applicants and intervenors have challenged the vires of 
the following legislative instruments:- 
 
1. 
The Sindh Civil Servants (Regularization of Absorption) 
Ordinance, 2011. 
 
2. 
The Sindh Civil Servants (Regularization of Absorption) 
Act, 2011.  
 
3. 
The Sindh Civil Servants (Amendment) Ordinance, 2012. 
 
4. 
The Sindh Civil Servants (Second Amendment) 
Ordinance, 2012.  
 
Crl.Org.P.No.89/11 etc.  
6 
5. 
The Sindh Civil Servants (Amendment) Act, 2013.  
 
6. 
The Sindh Civil Servants (Second Amendment) Act, 
2013.  
 
2. 
 
In order to appreciate the issues raised in these proceedings, it is 
necessary to depict the material facts giving rise to the promulgation of these 
legislative instruments. The Governor of Sindh on 22.01.2002 amended the 
Sindh Civil Servants Act, 1973, (hereinafter referred to as the “Act of 
1973”) by Sindh Civil Servants (Amendment) Ordinance, 2002. It provided 
that after section 9, following new section 9-A shall be inserted:- 
“9-A Notwithstanding anything contained in this Act or any 
other law for the time being in force or any judgment of any 
court, a civil servant who provenly exhibits the act of 
gallantry while performing his duties or very exceptional 
performance beyond the call of duty, may be granted out of 
turn promotion or award or reward in such manner as may 
be prescribed.” 
The Governor of Sindh on 26.02.2008 amended Act of 1973 through the 
Ordinance III of 2008, omitting Section 9-A. This Ordinance III of 2008 was 
not placed before the Provincial Assembly within the period of three 
months, as such the Ordinance III of 2008 lapsed by operation of law and the 
original section 9-A which was protected by the 17th Amendment made in 
the Constitution under Article 270-AA, stood revived.   
 
3. 
 
 Before 22.1.2002, there was no provision in the Sindh Civil 
Servants Act relating to out of turn promotions. It was only section 8-A in 
the Punjab Civil Servants Act (VIII of 1974) which empowered the Punjab 
government to grant out of turn promotions. The cases of out of turn 
promotions in the Sindh Police emerged in the Constitution Petitions 
No.1595 of 2002 along with Constitution Petitions No.434, 954, 987, 1081, 
Crl.Org.P.No.89/11 etc.  
7 
1095, 1153, 1536, 2341 and 2342 of 2008 before the Sindh High Court when 
a learned Division Bench of the Sindh High Court, vide its judgment dated 
31.3.2009, allowed the Government of Sindh to revive Rule 8-B of the Sindh 
Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 
(hereinafter referred to as the “Rules of 1974”), with the direction that the 
cases of out of turn promotions be examined by a committee to be 
constituted under Rule 8-B and any person aggrieved by the decision of the 
committee, may approach the appropriate forum for redressal of his 
grievance.  
 
4. 
 
This judgment of the Sindh High Court, was challenged by the 
aggrieved police officers before this Court, however, the petitions were 
withdrawn by them on the ground that they will seek review of the said 
judgment from the Sindh High Court. The Petitioners filed review 
applications which were disposed of on 21.4.2011 by the Sindh High Court 
in the terms contained in the judgment dated 31.3.2009. The Sindh 
Government in compliance with the directions in the aforesaid judgment 
revived Rule 8-B of the Rules of 1974, but the committee did not scrutinize 
the cases of out of turn promotions. In order to appreciate the controversy 
between the parties, the Sindh High Court in the said judgment held as 
follows by:- 
3. 
At the outset, learned Addl. A.G. Sindh has extended a 
proposal for the just, fair and equitable redress of the grievances 
of all the petitioners in these petitions. According to him, these 
petitions can be disposed of in the terms that the Government of 
Sindh may be directed to immediately revive the earlier Rule 8-B 
in the Rules of 1974 introduced by notification dated 10.02.2005 
and thereafter to examine individually all the cases of the police 
officers, who have been awarded promotions after introduction of 
Crl.Org.P.No.89/11 etc.  
8 
Section 9-A in the Act of 1973, without following the guidelines 
and the procedure laid down in the said rule, which facilitated 
some of the respondents to get out of turn promotions due to their 
influence and contacts and in the same manner also to examine the 
case of the other petitioners, who were denied such right on the 
premises that after 11.05.2005, Rule 8-B was no more in force, 
therefore, promotion in terms of Section 9-A was not warranted.  
4. 
Mr. Khalid Jawed Khan supporting the proposal of the 
learned Addl. A.G., contends that in case such proposal gets 
approval of this Court, the petitioners will not be pressing the 
relief of declaration that Section 9-A of the Act of 1973 is ultra 
vires to the provisions of the Constitution of Islamic Republic of 
Pakistan, 1973, though otherwise, releasing its weak legal 
position, even the Government of Sindh had issued Ordinance III 
of 2008, to omit Section 9-A (ibid). He further clarifies that since 
this ordinance was not placed before the Provincial Assembly for 
approval, thus it stood expired after 90 days from the date of its 
issue. 
5. 
The other counsel present in Court representing petitioners 
and respondents, are in agreement with the proposal of the learned 
Addl. A.G. as well as the submission of Mr. Khalid Jawed Khan, 
except Mr. Arshad Tanoli, advocate, who submits that following 
the principle of locus poenitantiae, his clients, who have already 
earned the promotion, are protected, therefore, there is no need of 
reopening of their cases after lapse of considerable time.  
6. 
After careful consideration of his submission, we are of the 
opinion that a person/litigant, who has availed benefit for 
promotion under Section 9-A without application of the criteria 
laid down under Rule 8-B by way of underhand means or by any 
mode other than merit, cannot get protection of such benefit on the 
principle of locus poenitantiae, unless he could show that the 
benefit availed by him was in accordance with law;  in good faith 
and without any ulterior motive or malafide. In this regard, we 
seek guidance from a recent judgment of the Hon’ble Supreme 
Court of Pakistan in the case of FARHAT ABBAS  VS.  I.G. AND 
OTHERS 92009 S.C.M.R. 245), which also relates to the out of 
turn promotion in the Police Department, and lays down as under  
: - 
“7. 
The order was recalled by the authority assigning valid 
reasons to differentiate and to follow the parameters of reward on 
Crl.Org.P.No.89/11 etc.  
9 
account of bravery and gallantry as well as appreciation for 
performance of duty diligently but with due regard to the extent of 
such appreciation to commensurate with the degree of merit 
involved. Undoubtedly performance of duty with due diligence and 
efficiently deserves due appreciation but it cannot be over 
appreciated out of proportion so as to make out case a grievance 
to the other employees in service of the department. It a case of 
glaring favouritism is made out resulting in a mala fide action as 
in the instant matter, it has to be rectified in accordance with law 
to avoid any injustice.  Such a valid order cannot be set aside 
merely on conjectures or surmises as such practice would 
encourage a person to obtain any order using underhand means or 
otherwise and then claim immunity for such acts which would, 
therefore, result in rewarding the person using such means by 
allowing him to continue to enjoy fruits of such ill-gotten gains and 
thus, perpetuate injustice.” 
To add force to this view and disapprove the contention of Mr. 
Tanoli about the applicability of principle of locus poenitantiae to 
the case of petitioners falling under the second category of 
petitions, 
cases 
of 
NAZIR 
AHMED 
PANHWAR 
VS. 
GOVERNMENT OF SINDH THROUGH CHIEF SECRETARY, 
SINDH AND OTHERS (2005 S.C.M.R 1814) and ABDUL HAQUE 
INDHAR AND OTHERS  VS.  PROVINCE OF SINDH THROUGH 
SECRETARY 
FOREST, 
FISHERIES 
AND 
LIVESTOCK 
DEPARTMENT, KARACHI AND 3 OTHERS (2000 S.C.M.R. 907) 
may also be referred here with advantage.  
7. 
After careful consideration of the proposal extended by Mr. 
Abdul Fateh Malik, learned Addl. A.G. which is consented by other 
counsel, except Mr. Arshad Tanoli, we find it just, equitable, fair 
and practical to redress the grievance of all the petitioners, who 
are agitating against the out of turn promotions awarded to some 
other officers in the Police Department, without meeting the 
requirement and following the procedure prescribed under Rule 8-
B of the Rules of 1974. 
8. 
This being the position, we are inclined to accept such 
proposal and dispose of these petitions in the terms that the 
Government of Sindh shall take immediate steps for the revival of 
Rules 8-B, which is even otherwise requirement of law in view of 
Crl.Org.P.No.89/11 etc.  
10
the clear language of Section 9-A (ibid) r/w Section 2(g) of the Act 
of 1973, in the same lines as already available in the notification 
dated 10.02.2005. It is painful to observe here that the scheme of 
working of Section 9-A of the Act of 1973 set out under Rule 8-B 
(ibid) was disturbed and upset by the then Chief Minister, 
Government of Sindh at his whims by its illegal cancellation within 
three months of its introduction, which is evident from his order 
dated 24.04.2005. 
9. 
We expect that such exercise will be completed by the 
Government of Sindh within 60 days from the date of this order, 
whereafter the cases of all the police officials, who are 
petitioners/respondents in these petitions and have been promoted 
or deprived promotion after the insertion of Section 9-A, will be re-
examined by the committee duly constituted under Rule 8-B, 
strictly in the light of such rule on merits. Till such exercise is 
completed by the committee, as an interim arrangement the 
promotions already granted to some of the Police Officials, will 
not be disturbed.” 
 
5. 
 
The Government of Sindh vide its Notification dated 
07.01.2010, repatriated certain deputationists to their parent departments, 
who were working in the Sindh Government. These deputationists impugned 
the notification of repatriation in C.Ps.No.D-57 etc before the Sindh High 
Court at Karachi. On the other hand, the civil servants of the Sindh 
Government also preferred C.Ps.No.678 of 2009 etc, inter alia, on the 
ground that the deputationists appointed by the Sindh Government, lacked 
the requisite qualifications and experience for the posts against which they 
were working, resulting in infringement of their valuable rights guaranteed 
under the law. The learned Sindh High Court, by its judgment dated 
06.05.2010, dismissed the writ petitions of the deputationists and allowed 
the writ petitions of the civil servants of the Sindh Government holding 
therein that deputationists have no vested right to stay in the Sindh 
Crl.Org.P.No.89/11 etc.  
11
Government besides their induction in different departments in the said 
Government infringes the right of promotion of civil servants of the Sindh 
Government.   
 
6. 
 
Another Constitutional Petition No.1491 of 2010 was filed by 
Syed Imtiaz Ali Shah and others against the Sihdh Government before a 
Division Bench of the Sindh High Court at Hyderabad, challenging the 
appointment of Abdul Hameed Abro, EDO, (Finance, Planning & IT), 
Tando Muhammad Khan, who was an officer of the Income Tax Group and 
was transferred and posted as E.D.O (Finance, Planning and I.T) on 
deputation in the Sindh Government. It was pleaded in the writ petition that 
the appointment of Abdul Hameed Abro, was in violation of judgments of 
the learned Sindh High Court as well as of this Court. During the hearing of 
the writ petition, Secretary Services, Government of Sindh appeared in 
Court and placed a list of 152 non-cadre officers, who were working in the 
Sindh Government on cadre posts or field assignments either on deputation 
or through transfer basis. The Secretary, Services conceded that the 
deputationists were not qualified to hold the posts against which they were 
working. By judgment dated 14.12.2010, the learned Division Bench 
accepted the writ petition and directed the Sindh Government to repatriate 
all the deputationists to their parent departments and transfer the officers to 
their own cadres, within 15 days of the communication of the judgment. It 
was further directed in the judgment that the Sindh Government shall refrain 
from issuing posting orders of any non-cadre officer to a cadre post by 
transfer under section 10 of the Civil Servants Act nor shall it depute by 
transfer any officer from occupational group of the Federal Government or 
Crl.Org.P.No.89/11 etc.  
12
from autonomous body in the Sindh Government except in exigency unless 
the deputationist meets the criteria of matching qualifications, eligibility and 
experience to the proposed post.  
 
7. 
 
The aforesaid judgment of the Division Bench of the Sindh 
High Court was challenged before this Court in Civil Petitions No.802-K of 
2010 and 4-K of 2011 by some of the deputationists namely Javed Ahmed 
and others. On 10.1.2011, this Court refused leave to the petitioners, 
affirming the findings of the learned Sindh High Court in C.P.No.1491-D of 
2010. It is pertinent to mention here that the Sindh Government did not 
challenge the judgment of the Sindh High Court.   
 
8. 
 
In the year 2009, Dr. Nasimul Ghani Sahito and others filed 
Constitution Petition No.D-932 of 2009 before the Sindh High Court 
challenging the absorption of 12 officers in the Sindh Government. On 
2.4.2011, the writ petition was allowed and all the officers except two were 
ordered 
to 
be 
repatriated 
to 
their 
parent 
departments. 
The 
respondents/absorbees challenged the said judgment of the Division Bench 
before this Court whereas one of the petitioners Dr. Nasimul Ghani Sahito 
also challenged the absorption of one of the absorbees namely S.M. Kaleem 
Makki. This Court granted leave in all these petitions and the appeals were 
numbered as 404-K, 405 to 413-K and C.A No.12 of 2012.  
 
9. 
 
During the pendency of the aforesaid appeals before this Court, 
the Governor Sindh on 4.5.2011, promulgated the impugned Sindh Civil 
Servants (Regularization of Absorption) Ordinance, 2011, through which the 
employees of Federal Government, Corporation, Council, statutory body or 
Crl.Org.P.No.89/11 etc.  
13
any authority absorbed in the Sindh Government as civil servants on or 
before commencement of the said Ordinance, were validated granting them 
backdated seniority from the date of their absorptions. On 15.6.2011, as a 
corollary to this Ordinance, the Sindh Provincial Assembly promulgated the 
impugned Sindh Civil Servants (Regularization of Absorption) Act, 2011, 
through which it granted validation to all the employees absorbed at times, 
granting them backdated seniority from the date of their absorption.  
 
10. 
 
On 16.6.2011, Farooq Azam Memon and others filed 
Constitution Petition No.71 of 2011, in this Court challenging the vires of 
the Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011, 
and Sindh Civil Servants (Regularization of Absorption) Sindh Act, 2011. 
Some of the appellants, who have challenged the judgment of the Division 
Bench in Constitution Petition No.D-932 of 2009 sought withdrawal of their 
appeals with the option of revival, after decision of Constitution Petition 
No.71 of 2011 and Civil Appeal No.12 of 2012, in which the vires of afore-
referred instruments were challenged. This Court disposed of the appeals of 
the appellants allowing them such option. This Court fixed the Constitution 
Petition No.71 of 2011, by its order dated 2.5.2012. All these matters are 
listed for hearing before this Bench.  
 
11. 
 
On 14.03.2012, while hearing Suo Moto Case No.08 of 2011 at 
Karachi, the Bench of this Court noticed that Mr. Agha Abid Hussain an 
employee of Pakistan Telecommunication Corporation was transferred on 
deputation and posted as Regional Director Sindh Building Control 
Authority, Sukkur in defiance of this Court’s judgment passed in Civil 
Petition No.802-K of 2010 and 4-K of 2011. The Additional Advocate 
Crl.Org.P.No.89/11 etc.  
14
General appearing in the matter was directed to file statement justifying his 
deputation. The Bench further directed the Chief Secretary and the Secretary 
Services, Sindh Government to appear in Court with the list of all those 
officers, who were working on deputation in different departments in the 
Sindh Government. The matter was adjourned to 15.03.2012. 
 
12. 
 
On 15.03.2012, in the aforesaid Suo Moto case No.08 of 2011, 
a report in regard to deputationists working with the Government of Sindh 
was placed. The Advocate General conceded that some officers were not 
repatriated to their parent departments and he undertook that such orders will 
be complied with by the next date of hearing. 
 
13. 
 
On 16.03.2012, the Advocate General placed before the Bench 
of this Court at Karachi, the list of 109 officers who were posted on 
deputation in the Sindh Government. The Advocate General also made a 
statement which was incorporated in the Order that the Chief Minister of 
Sindh did not accord approval to the summary of any of these officers. It 
was noticed by the Bench that the Sindh Government has willfully withheld 
the names of many officers, who were working on deputation and an 
incomplete list was placed before the Sindh High Court hearing C.P.No.D-
1491 of 2010. After the judgment in the aforesaid Petition and in the 
intervening period, instead of complying with the directives contained in the 
judgment, the Government of Sindh has further inducted/deputed employees 
from different departments/organizations in defiance of the Courts orders. 
The Notification of 15th March 2012 was placed before the Bench of this 
Court reflected that the officers who were ordered to be repatriated to their 
parent departments and or working in the non-cadre posts were absorbed 
Crl.Org.P.No.89/11 etc.  
15
against cadre posts without lawful justification. As a result, the office was 
directed by the Bench to place a separate note before the Honourable Chief 
Justice of Pakistan with the relevant record for appropriate orders in the 
matter. This being the important order is reproduced for convenience:- 
“Today the learned Advocate General has filed a Notification 
dated 
15-3-2012 
in 
regard 
to 
repatriation 
of 
81 
officers/officials, who after the Judgment of this Court dated 
10-1-2011 passed in Civil Petitions No.802-K of 2010 and 
No.4-K of 2011 titled as Javed Ahmed and others VS. 
Government of Sindh, had been posted out of cadre, from 
Government of Sindh to their parent departments. 
 
2. 
In these proceedings, on 14-3-2012 we queried the 
learned Additional AG, Mr. Miran Muhammad Shah, as 
to how Mr. Agha Abid Hussain, Additional Director, 
SBCA, Sukkur, who was present in Court and was 
previously employed in the Pakistan Telecommunication 
Corporation was posted on deputation as Regional 
Director, SBCA, Sukkur in clear violation of the 
aforementioned Judgment of this Court whereby 
Judgment of the learned Sindh High Court (Circuit 
Bench Hyderabad) passed in CP No.D-1491 of 2010 on 
14-12-2010 on the issue, was affirmed. The learned 
Additional AG sought time and matter was adjourned for 
15-3-2012, when the Chief Secretary and the Secretary 
Service (SGA&CD), Government of Sindh alongwith 
learned Advocate General have appeared and a formal 
report of deputationists working in Government of Sindh 
was placed before us. However, the matter was 
adjourned to 16-3-2012 with direction to submit a 
comprehensive report/list of all those officers who are 
working in Government of Sindh on deputation/inducted 
from other departments/organizations after the Judgment 
of this Court referred to herein-above. 
 
3. 
The report submitted by the Advocate General today 
depicts that all Government of Sindh in defiance of the 
aforementioned Judgment of this Court has inducted and 
or posted on deputation as many 109 officers/employees 
for which no explanation of any nature has been given by 
the Secretary (Services). The learned Advocate General, 
Sindh, however, has made a statement that the Chief 
Minister, Sindh, did not accord approval to any summary 
in this regard. 
 
4. 
Earlier, the Secretary (Services) had furnished a list of 
such officers/employees, before the Sindh High Court in 
Crl.Org.P.No.89/11 etc.  
16
CP No.D-1491 of 2010, which was reproduced by the 
learned High Court in its Judgment dated 14-12-2010. 
Out 
of 
the 
said 
list 
many 
officers 
were 
not 
relieved/repatriated by the Government of Sindh in 
defiance of the directives of the High Court and this 
Court, inter alia, on the ground that some of them were 
absorbed under Sindh Civil Servants (Regulation of 
Absorption) Act, 2011. In all there were ten police 
officers who are claimed to have been absorbed in the 
Sindh Government after the Judgment. It was further 
stated in the report that three Police Offices were 
absorbed under the directives of the Sindh High Court 
passed in CP No.D-500 of 2010 and No.D-420 of 2009. 
 
5. 
We do not want to further dilate upon the acts of the 
Sindh Government on this issue. In fact the Law Officers 
appearing different proceedings filed by the Officers 
before the Sindh High Court have conceded to the 
absorption, in contradiction to the plea taken by the 
Sindh Government before the High Court during hearing 
in CP No.D-1491 of 2010. There were many other 
officers who on account of their influence in the 
Government were not mentioned in the first list provided 
by the Secretary (Services). In the intervening period, 
instead of complying with the aforementioned Judgment 
of this Court, the Government of Sindh has further 
inducted/deputed 
officers 
from 
other 
departments/organizations, 
which 
act 
ex-facie 
is 
contemptuous and derogatory. We still believe that a 
number of officers/employees whose names do not 
appear in the list provided by the Secretary (SGA&CD) 
have been inducted in the same manner from different 
departments and or organizations bypassing the service 
rules and procedures as the Secretary (Services) might 
not have been provided correct information from all the 
departments, particularly, Home, Police, Law, Local 
Government, etc. Even the list submitted was otherwise 
incomplete. 
 
6. 
If such actions of the Government of Sindh are allowed to 
be perpetuated it would destroy the institutions and 
paralyze the system. This would do away with the 
fundamental right of promotion of incumbents who have 
been working in the Sindh Government for years 
together. The scheme of Service Law provides such 
protection. Additionally after the Judgment of this Court 
the Sindh Government was directed to repatriate the 
deputationists 
but 
instead 
they 
have 
inducted 
deputationists and in some cases absorbed them 
permanently in order to frustrate the Judgment of this 
Court. 
Crl.Org.P.No.89/11 etc.  
17
 
7. 
Under these circumstances, we feel that actions on the 
part of Sindh Government warrant interference by 
initiating contempt proceedings against those who are 
guilty of willful defiance of the directions of this Court as 
mentioned hereinabove. The Notification dated 15-3-
2012 placed before us today by which Sindh Government 
has 
ordered 
repatriation 
of 
81 
out 
of 
cadre 
officers/officials will not, prima facie, absolved them 
from facing the contempt proceedings as the Judgment of 
this Court and Judgment of the Sindh High Court, 
referred to above, have not been complied with in letter 
and spirit. 
 
8. 
Consequently, office is directed to place this order before 
the Honourable Chief Justice in a separate file, 
alongwith the orders passed by us on 14-3-2012, 15-3-
2012, copies of the Judgments of this Court in CP 
No.802-K of 2010 and 4-K of 2011 and of Sindh High 
Court (Hyderabad Circuit Bench) passed in CP No.D-
1491 of 2010, reports submitted by the Secretary 
(Services) SGA&CD through Advocate General, Sindh 
on 16-3-2012 beside other notification dated 15-3-2012 
for passing appropriate orders in the matter. 
 
For lack of time, main case is adjourned to next 
sessions.” 
 
14. 
 
The Hononurable Chief Justice of Pakistan after perusal of the 
aforesaid order of the Bench passed in S.M.C.No.8 of 2011 approved 
initiation of contempt proceedings against the Chief Secretary, Home 
Secretary and I.G.P Sindh, inclusive of two officers namely Shahid Hussain 
Mahesar and Shiraz Asghar Sheikh.  
 
15. 
 
Pursuant to the aforesaid orders of the Honourable Chief Justice 
of Pakistan, the office converted the note in Criminal Original and numbered 
it as Criminal Original No.89/2011. On 2.5.2012, the matter was fixed 
before a Bench of this Court at Karachi Registry. The Secretary Services put 
in appearance and informed the Court that as many as 205 officers are 
working on deputation in the Sindh Government, out of whom the Sindh 
Crl.Org.P.No.89/11 etc.  
18
Government intends to retain 12 officers and rest would be repatriated to 
their parent departments. The Bench inquired from the Secretary Services to 
justify their transfer on deputation after the judgment of this Court and as to 
whether the officers, who were transferred on deputation fulfilled the 
required criteria laid down in the judgments. He could not offer any 
plausible explanation. The Secretary Services, has placed before the Court 
three lists of the officers which included the names of the officers, who 
continued on deputation after the directives of this Court, and other two lists 
reflected the names of the officers subsequently transferred on deputation in 
the Sindh Government. This Court directed that all the officers mentioned in 
the lists shall stand relieved to join their parent departments except those 
who were absorbed by the Sindh Government under the Act XVII of 2011, 
vires of which enactment were challenged in Constitution Petition No.71 of 
2011 and Civil Petition No.926 of 2011, before this Court, in which leave to 
appeal was granted. The officers who claimed to have been absorbed were 
directed to join the aforesaid proceedings through the said order, however, 8 
officers were allowed to be retained by the Sindh Government till the 
completion of the different projects on which they were working. The 
Accountant General and Finance Department, Government of Sindh, were 
directed to stop the salaries and perks of all the officers named in the 
aforesaid three lists, with the exception of those, who were ordered to be 
retained and or absorbed by the Sindh Government under the afore-referred 
enactment. A show cause notice was issued to the Chief Secretary in terms 
of section 17(3) of the Contempt of Court Ordinance 2003, to appear and 
explain as to why contempt proceedings should not be initiated against him 
for willful defiance of the Court’s order. 
Crl.Org.P.No.89/11 etc.  
19
 
16. 
 
On 03.05.2012, the Chief Secretary appeared and tendered an 
unconditional apology, which was accepted by this Court. A statement was 
made on his behalf that the officers named in the lists had been relieved in 
compliance with the orders of this Court passed on 02.05.2012. The Chief 
Secretary was directed to ensure that the committee constituted under Rule 
8-B complete the scrutiny of the out of turn promotions granted to various 
officers in the Government of Sindh and submit a compliance report.  
 
17. 
 
On 04.05.2012, some of the deputationists who were ordered to 
be repatriated made applications to this Court, inter alia, on the ground that 
they were also absorbed by the Sindh Government.  
 
18. 
 
On 24.05.2012, the Secretary Services appeared in Court and 
submitted a list of 235 officers working on deputation and were repatriated 
to their parent departments. Again on 30.08.2012, this Court was informed 
that some of the deputationists ordered to be repatriated have obtained 
restraining orders from the Sindh High Court against the Notifications issued 
by the Sindh Government, pursuant to the directives of this Court.  The R & 
Ps of such cases were called from the Sindh High Court and ultimately, the 
deputationists who obtained interim orders withdrew their petitions from the 
High Court and relinquished their charge.  
 
19. 
 
On 04.09.2012, the Government of Sindh promulgated Sindh 
Civil Servants (Amendment) Ordinance, 2012, by which powers were 
conferred on the Chief Minister to order deputation, absorption, re-
employment, appointment on contract and out of turn promotions in the 
Sindh Government. This Ordinance was followed by another Ordinance 
Crl.Org.P.No.89/11 etc.  
20
called Sindh Civil Servants (Second Amendment) Ordinance, 2012, whereby 
exclusive powers were conferred on the Chief Minister Sindh, to grant out of 
turn promotions in the Sindh Police. These Ordinances were challenged 
before 
this 
Court 
by 
the 
civil 
servants 
through 
different 
petitions/applications agitating their grievance to be joined as party to the 
proceedings.   
 
20. 
 
On 06.09.2012, this Court while hearing Criminal Original 
Petition No.89 of 2011 and other connected cases, passed the following 
order:- 
“In view of the two Ordinances issued by the Governor Sindh in 
the last two/three days, learned Advocate General, Sindh and other 
learned ASCs for the parties appearing in these matters request for 
time to study these Ordinances and their effect on the pending 
litigation. Adjourned. Personal appearance of the Chief Secretary, 
Inspector General Police Sindh, Home Secretary and Secretary 
Services is dispensed with till further orders 
C.M.A.No.324-K of 2012 
 
Learned 
ASC 
for 
the 
applicants/interveners 
in 
C.M.A.No.324-K of 2012, in view of the Amending Ordinances 
issued by the Governor Sindh yesterday, providing room for 
regularization of all out of turn promotions under section 9-A of 
the Sindh Civil Servants Act 1973 before commencement of this 
Ordinance, seeks permission to withdraw this application for the 
time being to pursue their case before the Provincial Government. 
Such request is acceded to and this C.M.A is dismissed as 
withdrawn.”  
 
21. 
 
Again on 26.02.2013, a Bench of this Court at Karachi while 
hearing the Criminal Original Petition No.89 of 2011 and other connected 
matters passed the following order:- 
“Today, when this petition and other connected petitions have 
been taken up for hearing Mr. Abdul Fateh Malik, learned 
Advocate General, Sindh has placed on record a copy of “The 
Crl.Org.P.No.89/11 etc.  
21
Sindh Act No.I of 2013 promulgated by the Provincial Assembly of 
Sindh, Gazetted on 21st February 2013.  
2. 
 
Keeping in view the grievances of the petitioners 
qua the import of such legislation made by Sindh Government, we 
deem it fit, rather necessary to examine the vires of this amending 
enactment (Sindh Act No.01 of 2013), inter alia, on the touchstone 
of Articles 3, 4, 8, 9 and 25 of the Constitution. In order to enable 
learned Advocate General to make his submissions in this regard, 
hearing of these cases is now adjourned for the next session of this 
Court at Karachi Registry, M/s Abdul Hafeez Pirzada and Munir 
A. Malik, Sr. ASC’s are nominated as Amicus Curaie to assist the 
Court to the extent of the above posed question of law.”   
 
22. 
 
During the hearing of the Criminal Original Petition No.89 of 
2011, the Court was informed that the Provincial Assembly has promulgated 
another Act XXIV of 2013 by which further employees from different 
departments/ organizations were absorbed and regularized in the Sindh 
Government. The said enactment was also placed on record. Finally, on 
09.04.2013, the Secretary Services was directed to submit before this Court, 
the following information:- 
(i) 
The names of the deputationists, who were absorbed by the 
Government after order of this Court relieving them to join their 
parent departments with their dates of absorption.  
 
(ii) 
The names and the details of the officers with their dates of 
absorption, who were absorbed by the Government from non-
cadre to cadre postings mentioning dates of their absorption and 
the office they were holding prior to their absorption.  
 
(iii) 
The names of all the officers, who were absorbed by the 
Government from 2008 till 16th March 2013 with the details of 
their previous office and the dates with the details of the office in 
which they were absorbed.  
 
(iv) 
the names of officers, who were granted out of turn 
promotions from 31.3.2009 after the judgment of full Bench of the 
Sindh High Court in C.P.No.D-1595 till 16th March 2013.  
Crl.Org.P.No.89/11 etc.  
22
 
(v) 
The names of the officers who were transferred and posted 
from 15th February 2013 till 16th March 2013 to different office 
mentioning their previous postings with the dates of their transfer.  
 
(vi) 
The details of the officers, who are working in OPS 
mentioning their actual grades and also mentioning the grades to 
which they are posted against.  
 
(vii) 
The names of the persons who were appointed by the 
Government from Ist January 2013 till 16th March 2013 and the 
mode and manner in which the appointments were made.  
 
23. 
 
On 13.04.2013, the Secretary Services filed his report 
containing details sought by the Bench. The Court incorporated the details in 
its order, relevant portion of which is reproduced here-under:- 
“The Secretary Services states that in all there were 567 officers, 
who were placed on deputation by the Sindh Government. Out of 
these officers, many of them were relieved at times and on 2.5.2012 
there remained 235 officers, who were on the deputation. Out of 
the aforesaid 235 officers, 43 were retained on deputation after 
they were ordered to be relieved by this Court on 2.5.2012 and 
subsequently were absorbed pursuant to the Ordinance issued on 
4th September 2012 and the enactment dated 16th March 2013. He 
further submits that this Ordinance and the Act, which were passed 
on the dates mentioned hereinabove, absorbed the officers other 
than Mr. Ayub Sanjrani, Abdul Hameed Alvani, Saifullah Billo and 
Abdul Wahab Shaikh. According to him, these four officers, who 
are included in the absorption list were absorbed subsequent to the 
enactment and are not covered by the aforesaid instruments. He 
submits that this was done by the former Chief Minister. He next 
contended that in all 66 officers who were absorbed by the 
Provincial Government, which includes 43 officers and their 
names have been shown in Annexure “IV” of C.M.A.No.264-K of 
2013 (Part-1). According to him, this list also includes the names 
of the officers who were absorbed from non-cadre posts to cadre 
posts. According to him as far as the list containing the names of 
officers from January 2008 till 16th March 2013 is concerned, 
according to him, there are in all 179 officers, who were absorbed 
Crl.Org.P.No.89/11 etc.  
23
from January 2008 to March 2013, this number includes 66 
officers, who have been mentioned in Annexure “V”. He further 
submits a list of 179 officers, shown as Annexure “VI” to the 
aforesaid CMA, does not only includes the names of officers, but 
also subordinate staff, which was absorbed after closure of the 
Departments. These non-gazetted officers were placed in the 
surplus pool of the S&GAD and were absorbed in different 
Departments.” 
 
24. 
 
On 16.04.2013, these proceedings were fixed in Court at 
Islamabad. We informed the parties that we will be examining the vires of 
all the instruments referred to in Para-1 of this judgment inclusive of the 2nd 
Amendment 
Act 
2013 
passed 
on 
16.03.2013. 
The 
Advocate 
General/Additional Advocate General, Sindh, present in Court were put to 
notice. The impugned legislative instruments were already placed on record 
by the government through the Advocate General besides the private parties. 
Before calling upon counsel representing private parties, we first called upon 
Mr. Sarwar Khan, the learned Additional Advocate General Sindh, to submit 
his contentions in support of the impugned enactments. He contended that 
Articles 101 to 128 empowers Provincial Assembly to promulgate law.  
 
25. 
 
He next contended that the impugned instruments were 
promulgated for the benefit of the general public keeping in view the public 
interest of the civil servants. He further contended that the instruments were 
required to be promulgated to remove the anomaly which occurred due to 
various judgments of this Court and of the Sindh High Court. He further 
contended that the absorption of the employees under the impugned 
instruments was ordered with the object to condone illegalities and 
irregularities to bring home unrest amongst the civil servants. He submitted 
that the legislative competence of the Assemblies cannot be examined by 
Crl.Org.P.No.89/11 etc.  
24
this Court nor mala fide can be attributed to the legislature. In support of his 
contentions, he has relied upon the cases of Messrs Elahi Cotton Mills Ltd. 
Vs. Federation of Pakistan (PLD 1997 SC 582), Haji Ghulam Rasul vs. 
Government of the Punjab (2003 SCMR 1815), Fauji Foundation vs. 
Shamimur Rehman (PLD 1983 SC 457).  
 
26. 
 
Mr. Sarwar Khan next contended that the first impugned 
Ordinance/Act promulgated in 2011 validates absorptions of the different 
employees from 1994 to 15.6.2011 and cannot be construed either 
discriminative in terms of Article 25 and/ or violative of the Article 8(2) of 
the Constitution. When confronted as to explain reasons for promulgating 
six instruments from 15.06.2011 to 21.03.2013, on the common issues 
already decided by the Sindh High Court and this Court, he could not offer 
any explanation except submitting that the Provincial Assembly/Governor 
was competent under the Constitution to promulgate the impugned 
instruments.  
 
27. 
 
Ch. Afrasiab Khan, learned counsel for the petitioners in 
C.P.No.71 of 2011, C.A.No.12 of 2012 and C.P.No.21/2003 has contended 
that the impugned Act/Ordinance of 2011 ex-facie are ultra-vires of the 
fundamental rights guaranteed under Articles, 2-A, 4, 8, 14, 25, 175, 240, 
and 242 of the Constitution. He submitted that the issue of illegal 
absorptions which started since 1994 was first challenged by the aggrieved 
employees in Constitution Petition No.960 of 1996 and by order dated 
28.03.1997, the Sindh High Court disposed of the petition in the light of the 
summary floated by the department to the Chief Minister on 22.03.1995, the 
relevant portion of the summary is reproduced herein-below:- 
Crl.Org.P.No.89/11 etc.  
25
“4. 
In fact absorption of above named officers is not covered 
by the rules, even Section 24 of the Sindh Civil Servants Act 
would not be of any avail in the case of absorption of these officers 
who were not civil servants. The Law Department has also 
confirmed this point of view (F/‘B’). The High Court of Sindh in 
Constitution Petition No.D-385 of 1991 (Mr. Liaquat Ali Baloch 
v/s Government of Sindh and others) has observed that no doubt 
Section 24 of Sindh Civil Servants Act gives a blank cheque to the 
Government to deal with a civil servant in such a manner as may 
appear to it to be just and equitable, there must be some rational for 
it and discretion so conferred upon the Government may only be 
used judicially and not arbitrarily. Moreover, the appointments 
made without observing formalities and proper procedure have 
been held violative of Fundamental Human Rights by the Supreme 
Court of Pakistan.   
5. 
Though the appointment/absorption of above officers is not 
covered under the rules as pointed out by the petitioner, their right 
has accrued to hold the posts. Therefore we cannot at this stage, 
terminate their service or withdraw the subject notifications. 
However, it is advisable to refrain from such appointments in 
future. 
6. 
The position is submitted to the Chief Minister, Sindh for 
his kind perusal and further orders.” 
 
28. 
  
The learned High Court in its concluding Para, reproduced 
hereunder, has observed as under:- 
“In these circumstances, we would direct that within a month’s 
time in case no decision has been taken on the petitioner’s referred 
appeal, such would be taken and communicated to the petitioner. 
Alternatively, if decision has been taken but has not been 
communicated, due communication to the petitioner would follow 
within the same period. That being done and the matter pertaining 
to the terms and conditions of the service of the petitioner, which 
apparently seem to have been adversely affected, the petitioner 
would be free to go to the Sindh Service Tribunal in accordance 
with the relevant provisions.  
Meanwhile, as indicated in para 5 of the aforesaid Summary, no 
absorptions, clearly accepted to be illegal, would be made.” 
 
29.  
 
The learned High Court disposed of the aforesaid Petition 
restraining the Government that no further absorption would be made in 
terms, as indicated in Para-5 of the Summary reproduced hereinabove. The 
learned counsel submitted that since 1994 the affectees have not challenged 
the absorptions of the employees made by the Sindh Government. According 
to him, the act of absorption of the Sindh Government was challenged by the 
affectees and inspite of the restraining orders, the Sindh Government kept on 
absorbing their blue-eyed in defiance of the Civil Servants Act and the 
Crl.Org.P.No.89/11 etc.  
26
Recruitment Rules. He contended that the provisions of section 24 of the Act 
of 1973 cannot be resorted to, to cure the inherent defects surfacing 
absorption. While advancing his arguments, he has contended that a 
Division Bench of Sindh High Court in C.P.No.D- 932 of 2009 while 
interpreting section 24 of the Civil Servants Act has held that the powers of 
the 
competent 
authority 
were 
very 
limited 
and 
unless 
the 
conditions/precedents provided under section 24 are fulfilled the absorption 
made, would be illegal. He contended that the provisions of section 24 of the 
Act of 1973 required two pre-conditions to allow the Competent Authority 
to exercise powers of absorption. In the first place, the powers have to be 
exercised by the Government through a committee and not by the Chief 
Minister as an individual. Secondly, person in whose favour such residuary 
powers are exercised must be a civil servant as defined under the Sindh Civil 
Servants Act or rules framed there-under. Additionally, such powers have to 
be exercised in a manner as it appears to be just and equitable. According to 
him, the act of absorption in the absence of the aforesaid conditions, as 
contemplated under section 24 of the Act of 1973, would be construed to be 
colourable exercise of power. 
 
30.  
  
He next contended that the impugned Ordinance 2011 which 
was subsequently converted into the impugned Act XVII of 2011 by the 
Sindh Assembly violates the scheme of service law guaranteed by the 
Constitution in terms of Article 240 and 242 of the Constitution. According 
to him, any law passed by an Assembly and /or Parliament can be examined 
by this Court, in case if such law is violative of the fundamental rights. He 
has contended that in the case in hand, neither the impugned Ordinance nor 
Crl.Org.P.No.89/11 etc.  
27
the impugned Act provides the definition of the term “absorption” nor the 
basis on which the employees, who were not even Civil Servants, were 
ordered to be absorbed.  The impugned legislation has validated absorption 
of all the employees, without providing protection to it. The learned counsel 
submitted that the absorption of the employees by the Sindh Government 
was in conflict with the Act of 1973 and the rules framed there-under. 
 
31.  
 
The learned counsel Chaudhry Afrasayab has further contended 
that the concept of absorption is foreign to the Act of 1973 and the rules 
framed thereunder. It is only in exceptional cases, where the departments are 
closed and /or the civil servants in the said department becomes surplus, a 
surplus pool is created from where these surplus employees can be 
transferred and posted to other departments subject to their matching 
qualifications, eligibility and experience, as provided under Rule 9-A of the 
Rules of 1974.  
 
32.  
 
According to the learned counsel, the impugned Ordinance/Act 
which validates the absorptions is against the basic structure of the Civil 
Service laws. He submits that Article 240(b) of the Constitution provides the 
mechanism for appointment to the Service of  Province and the posts in 
connection with the affairs of  a Province, whereas Article 242(1B) provides 
the appointment of the Chairman of Public Service Commission constituted 
in relation to the affairs of a Province to be appointed by the Governor on 
advice of the Chief Minister.  The Article 242 (2) provides constitution of 
Public Service Commission entrusted with the powers prescribed by the 
rules. According to him, pursuant to the mandate of the Constitution, Public 
Service Commission has been constituted, which is entrusted with the 
Crl.Org.P.No.89/11 etc.  
28
powers to recommend recruitment of the civil servants under the prescribed 
rules. These recruitment rules are Bible of the civil service structure and no 
other method parallel to the recruitment rules can be adopted to extend 
favours to some of the employees by allowing them to be absorbed in the 
provincial service without recourse to the competitive process through 
Public Service Commission. He submits that the competence of the 
legislature, to legislate law is not un-restricted. The learned counsel has 
referred to the Act of 1973 which defines the selection authority in terms of 
section 2(3)(i). Section 5 of the said Act prescribes the manner in which the 
appointments are to be made and section 6 speaks of initial appointment. He 
submits that the Sindh Government has bypassed the required procedure and 
without amending the Act of 1973 and /or rules framed there-under has 
promulgated the impugned Act 2011, which has impaired the fundamental 
rights of the civil servants.  
 
33.  
 
According to the learned counsel the illegal absorptions of the 
employees could not be given blanket cover by the impugned validation 
instruments, particularly when such absorbees did not have the matching 
qualifications, eligibility and competence to be absorbed against the posts, 
which otherwise could only be secured under the recruitment rules through 
the competitive process.  
 
34.  
 
His next contention was that these impugned legislative 
instruments were promulgated to defeat and nullify the judgments of this 
Court and the Sindh High Court on the issue of absorption. He submitted 
that those who have been absorbed, many of them were deputationists, non-
civil servants and were ordered to be repatriated to their parent departments 
Crl.Org.P.No.89/11 etc.  
29
by the Courts. He submitted that the impugned legislative instruments 
contain non-obstante clause which by itself is violative of the scheme of 
trichotomy of power provided by the Constitution. In support of his 
arguments, he has relied upon the cases of  Dr. Mobashir Hassan vs. 
Federation of Pakistan (PLD 2010 SC 265(372)), The Province of Punjab vs. 
National Industrial Co-operative Credit Corporation (2000 SCMR 567 
(597)), Raj Narain vs. Smt. Indira Nehru Gandhi (AIR 1975 SC 2299(2346), 
Capt. ® Abdul Qayyum vs. Muhammad Iqbal Engineer (PLD 1992 SC 184) 
and Muhammad Nadeem Arif vs. Inspector General of Police, Punjab 
Lahore (PLC 2010 CS 924).  
 
35. 
 
Dr. Farogh Naseem, learned counsel for Ali Haider, the 
Respondent No.3 in Constitution Petition No.71 of 2012 in reply to the 
arguments of Ch. Afrasiab Khan has contended that the judgment in the case 
of Dr. Mobashir Hassan does not apply to the controversy raised in these 
proceedings. He contended that the Act XVII of 2011 was promulgated on 
15.03.2011 with the sole object to remove the defect in the judgment passed 
on 02.04.2011 in Writ Petition No.932 of 2009. He further contended that in 
the Constitution Petition No.71 of 2011, vires of the Act XVII of 2011 were 
challenged, has become infractuous, as on 21.03.2013, the Act XXIV of 
2013 was promulgated which has not been challenged by the petitioner.  
 
36. 
 
On query from the Court that if the petitioners have not 
challenged the subsequent legislation promulgated during the pendency of 
the proceedings on the same subject, whether this Court in exercise of its suo 
motu jurisdiction can examine subsequent legislation. Dr. Farogh Naseem 
fairly conceded that this Court has the power to examine the vires of such 
Crl.Org.P.No.89/11 etc.  
30
legislation. He contended that the Constitution Petition No.71 of 2012 was 
not maintainable under Article 184(3) of the Constitution, which has a 
limited scope. According to him the petitioners have raised individual 
grievances in the petition which falls outside the parameters of Article 
184(3) of the Constitution.  
 
37. 
 
While elaborating his arguments on the issue of effect of the 
judgments of the Courts on the impugned legislative instrumetns, the learned 
counsel has taken us through the different portions of the judgment in the 
case of Dr. Mobashir Hassan reported in (PLD 2010 SC 265) to persuade us 
that the judgment in the said case would extend and apply to the criminal 
cases and not to a statute governing the rights of civil servants. He next 
contended that once the legislature has validated the absorption of the 
employees by promulgating the impugned Act, the Respondents, in law, are 
entitled to its benefit. He however, submitted that section 3(2) of the 
impugned Act XVII of 2011 which grants backdated seniority to the 
absorbees under the impugned Act is liable to be struck down. According to 
him, seniority of an absorbee in the department, to which he is absorbed, has 
to be kept at the bottom. The previous seniority of such an absorbee cannot 
be counted in service as it would be discriminatory and against the rights of 
the employees entered in the encadrement prior in time to the absorbee.  
 
38. 
 
He was required by us to formulate his contentions in a manner 
that all the legislative instruments challenged and/ or examined in these 
proceedings are covered and all the learned counsel appearing for the parties 
could advance their arguments on such formulation. He has submitted the 
following formulations:- 
Crl.Org.P.No.89/11 etc.  
31
1. 
Whether the Acts (Act XVII of 2011 and Act 
XXIV of 2013) legislatively annul the judgment 
dated 14.4.2011 of the Sindh High Court passed in 
C.P.No.932 of 2011? 
 
2. 
Whether any of these statutes is violative of any 
provisions of the Constitution? 
 
 
3. 
Whether any of these statutes can be annulled for 
being in conflict with the service law and rules 
operating prior to the said statute? 
 
4. 
Whether a statute can be struck down on the 
ground of mala fide of facts? If so. 
 
 
5. 
Whether these statutes actually suffer from mala 
fides of facts? 
 
 
6. 
Scope of principle of stare decisis and its 
application before the Supreme Court? 
 
 
7. 
Whether the deputation, absorption, regularization, 
out 
of 
turn 
promotions, 
re-employment, 
contractual/ adhoc employment which are the 
subject matter of these proceedings can be 
validated through the impugned statutes? 
8. 
Whether the petitioners having in essence raised 
their 
personal 
grievances 
through 
these 
proceedings can be entertained by this Court under 
Article 184(3) of the Constitution? 
 
 
9. 
Whether the issue of vires of the impugned 
legislation affect the fundamental rights of the 
petitioners/civil servants? 
 
39. 
 
The learned counsel has advanced his arguments on the issue of 
absorption only. According to him, the provisions of Article 240(b) do not 
restrict the provinces from multiple legislation. He contended that Article 
142 of the Provincial Legislature grants residuary powers to the Provincial 
Assemblies whereas Article 242 (1B) and (2) speak of constitution of Public 
Crl.Org.P.No.89/11 etc.  
32
Service Commission, appointment of its Chairman and the functions which 
the Commission will undertake, as prescribed by the law. According to him, 
pursuant to this scheme, Sindh Public Service Commission Act, 1989, was 
promulgated and its Section 7(i) relates to the conduct of test and 
examination for initial appointments whereas Section 7(ii) provides 
qualifications and method of recruitment.  
 
40. 
 
He further contended that section 5 of the Act of 1973, speaks 
of appointments prescribed by Section 2(g) of the Act which refers to the 
Rules called the Sindh Civil Servants (Appointment, promotion and 
Transfer) Rules, 1974. He submitted that the impugned Act XVII of 2011 as 
well as impugned Act XXIV of 2013 are parallel statutes to the Act of 1973, 
having non-obstante clauses, effect of which has been interpreted by this 
Court in the case of Province of Sindh through Chief Secretary vs. 
Prosecutor General Sindh (2012 SCMR 307). He contended that 
introduction of such a non-obstante clause will nullify the effect of Act of 
1973, and it can safely be construed that such legislation, in no way, is 
violative of the fundamental rights guaranteed by the Constitution.  
 
41. 
 
Mr. M.M. Aqil Awan learned counsel for the private 
Respondents namely Dr. Muhammad Ali, Dr. Aftab Mallah, Ghani Jokhio, 
Ahmed Hussain Solangi, (Respondents in C.P.No.71/2011) has filed his 
written arguments in terms of order of this Court dated 30.04.2013, which 
was numbered as C.M.A.No.2697 of 2013. Additionally, he has requested 
the Court to allow him to make oral submissions, which request was acceded 
to. He contended that the Respondents, whom he represents, were absorbed 
by the Sindh Government in exercise of powers under section 24 of the Act 
Crl.Org.P.No.89/11 etc.  
33
of  1973. According to him, Constitution Petition No.71 of 2011 filed by the 
petitioners, by which the vires of impugned Ordinance III of 2011 dated 
04.05.2011 and the impugned Act XVII of 2011 have been challenged, is not 
maintainable. According to him, through the aforesaid petition seniority, 
eligibility and promotion of the Respondents have been challenged by the 
petitioners, which falls within the domain of the Sindh Service Tribunal. 
According to him, direct petition to this Court would not lie for the redressal 
of individual grievance of a party. He submitted that the petitioners have 
challenged the promotion, seniority and eligibility of the Respondents, 
which fall within the terms and conditions of service, therefore, the petition 
is not maintainable under Article 184(3) and the petitioners should approach 
the appropriate forum for redressal of their grievances.  
 
42. 
 
His next contention was that there are 30 petitioners in 
Constitution Petition No.71 of 2011, who belong to the Provincial 
Secretariat Service. The question raised in the petition by employees of one 
cadre would not attract the necessary ingredient, which is the condition 
precedent to invoke the jurisdiction of Article 184(3) of the Constitution, as 
the employees of one cadre cannot enlarge the meaning of public interest by 
directly approaching this Court. In support of his contentions, he has relied 
upon the cases of Syed Zulfiqar Mehadi vs. P.I.A (1998 SCMR 793 (799)). 
According to him, in order to exercise jurisdiction under Article 184 (3) of 
the Constitution by this Court, the issues raised in the petition must pertain 
to infringement of fundamental rights. According to him, the seniority and 
the promotion are not vested rights of the petitioners to approach this Court 
in a constitution petition.   
Crl.Org.P.No.89/11 etc.  
34
 
43. 
 
He next contended that malafide cannot be attributed to the 
legislature nor nullifying a judgment of the Court can be made a ground to 
strike down the impugned legislative instruments. He submitted that by 
impugned instruments the absorption of different employees in the Sindh 
Government has been validated. The petitioners through these proceedings 
cannot challenge the ‘absorption’ of such employees nor the benefit 
extended to them can be withdrawn. In support of the contention, he has 
relied upon the cases of Mazhar Ali vs. Federation of Pakistan (1992 SCMR 
435) (440), Province of Punjab vs. Ibrar Younis (2003 PLC (CS) 1357 
(1361)), Hussain Badshah vs. Akhter Zaman (2007 CLC 157 (163)), 
Chairman Minimum Wages Board vs. Fayyaz Hussain (1999 SCMR 104) 
(106)) and Ghulam Rasool Vs. Secretary, Government of Pakistan Ministry 
of Defence and others (2011 SCMR 994 (998).   
 
44. 
 
Mr. Abrar Hassan, ASC, has filed his written arguments by way 
of C.M.A.No.2698/2013 on behalf of Respondent No.5 in C.P.No.71 of 
2011 and he has submitted that he adopts the arguments of Dr. Farough 
Naseem, learned ASC, appearing for the Respondents.  
 
45. 
 
Mr. M. M. Aqil Awan, learned counsel representing the 
Respondents in Civil Appeal No.183-K of 2011 has challenged the vires of 
the impugned legislation. He has filed his written synopsis by way of 
C.M.A.No.2715/2013 and C.M.A.No.2732/2013. He has requested for oral 
arguments as well, which request was acceded to. He submitted that he will 
make his submissions on the issues of deputation, absorption and out of turn 
promotions. According to him, the Sindh Civil Servants Act does not permit 
Crl.Org.P.No.89/11 etc.  
35
any non-civil servant to be transferred and posted on deputation to any 
government department in Sindh. According to him, the word ‘deputation’ 
has neither been defined in the Act of 1973 nor in the rules framed there-
under. He contended that the word ‘deputation’ has been borrowed from the 
Esta Code, which has two parts. The first part deals with the instruments and 
the other deals with the office memoranda, issued by the Establishment 
Division from time to time. According to him, entry under Esta Code 
Edition 2009 Chapter-II at page 425 deals with transfer, posting/deputation. 
According to him it is only a government servant, who could be transferred 
on deputation. Such transfer is subject to the process of selection to a post in 
a department of service, which is altogether different from the one to which 
he permanently belongs, and the third ingredient for the deputation is that 
such an officer is entitled to lien as long he holds the new post in an 
officiating capacity or temporary capacity, but such lien stands terminated 
either on confirmation in the new post or on reversion to his substantive 
post. He contended that the definition of ”deputation” as provided by the 
Esta Code was adopted by this Court in the case of Islamic Republic of 
Pakistan vs. Israr-ul-Haq (PLD 1982 SC 531 (542). He submitted that this 
definition was further defined in the case of Muhammad Arshad Sultan vs. 
Prime Minister of Pakistan (PLD 1996 SC 771 (777-B)), which reads 
“Deputationist is defined to be a government servant, who is appointed or 
transferred through the process of selection to a post in a department or 
service altogether different from the one to which he permanently belongs. 
He continues to be a deputationist unless confirmed in the new post or 
reverted to his substantive post”, following the case of Israr-ul-Haq. In the 
case of Muhammad Ramzan vs. Government of Pakistan (1999 PLC (CS) 
Crl.Org.P.No.89/11 etc.  
36
1149 (1153-A)) the aforesaid definition in the case of Muhammad Arshad 
Sultan was followed. The learned counsel while referring to the aforesaid 
judgments of this Court has contended that this Court has held that no non-
civil servant can be transferred and appointed by way of deputation, in any 
government department to any cadre and or non-cadre post.  
 
46. 
 
 He next contended that the Act of 1973 does not define the 
word ‘deputationist’. He however, submits that section 2 (1) (b) of the Act of 
1973 reads:- 
“2 (1) (b) “civil servant” means a person who is a 
member of a civil service of the Province or holds 
a civil post in connection with the affairs of the 
Province, but does not include-- 
 
(i) 
a person who is on deputation to the 
Province from the Federation or any other 
Province or authority; or 
 
According to the learned counsel, the term ‘Authority’ used in clause (a) 
hereinabove is used as a tool by the Sindh Government to cover up the 
illegal transfer on deputation of non-civil servants in Sindh Government. 
According to him the aforesaid sub-section deals with the person, who is on 
deputation to the Province from the Federation or any other Province or 
Authority. He submits that the term ‘person’ used in sub clause (b) (i) of 
section 2 (1) means a civil servant and does not include an employee of an 
authority. He has relied upon the judgment in the case of Lal Khan vs. 
Employees Old Age Benefits Institution (2010 PLC (CS) 1377 (1382)). He 
submits that in the said judgment, the identical issue was raised and the 
Advocate General Sindh Mr. Abdul Fatah Malik has made the statement in 
aforesaid case that there is no mechanism provided under the Rules to 
regulate the services of the deputationists who are non-civil servants. The 
Crl.Org.P.No.89/11 etc.  
37
learned Division Bench after hearing the Advocate General Sindh has held 
that a non-civil servant cannot be transferred and posted to the Sind 
Government by way of deputation.  
 
47. 
 
He further submitted that to cater the above deficiency, on 
4.9.2012 Ordinance No.VI of 2012, impugned in these proceedings, called 
as Sindh Civil Servants (Amendment) Ordinance, 2012 was promulgated. In 
the said Ordinance, section 2 (bb) was inserted which defines the word 
‘deputation’ means the posting of a person in accordance with sub-section 1 
of section 10-A. The Ordinance further introduces section 10-A and its 
clause (1) reads:- 
“10-A. (1) Notwithstanding anything contained in this Act, 
or any other law enforced, or any judgment of any Court, 
Government (C.M) shall have and shall be deemed to 
always have had the powers to appoint any person on 
deputation basis, who is civil servant, as defined in this Act, 
or the Federal Civil Servant Act, 1973, in the service of 
Government or Federal Government or autonomous, Semi-
autonomous Body Corporation or any organization setup, 
established, owned, controlled or managed by Government 
or as the case may, the Federal Government against any 
post in any cadre, in the Civil Service of the Province or in 
connection with the affairs of the Province”.  
 
 
The aforesaid Ordinance lapsed after 90 days and was never placed before 
the Provincial Assembly. He next contended that in the case of Safdar Ali 
Sahito vs. Province of Sindh (2011 PLC (CS) 972 (976-e-d)), a learned 
Division Bench of the Sindh High Court while interpreting ‘deputation’ has 
held as under:- 
“by posting outsiders on the basis of Deputation in various 
Departments of provincial Government, the changing 
Crl.Org.P.No.89/11 etc.  
38
cadres 
and 
inducting/absorbing 
them 
in 
various 
departments of provincial governments, created unrest and 
sense of deprivation amongst employees already working 
there. Authorities were directed to repatriated them. 
Government in case of exigencies could appoint any person 
on OPS basis, as a stopgap arrangement or current charge 
or acting charge or additional charge basis but cannot 
continue the OPS or Additional Charge for unlimited 
period of time.” 
 
48. 
 
According to the learned counsel, the impugned Ordinance 
contained the conditions that powers of the competent authority were subject 
to the proviso a, b and c of section 4 of the Act of 1973. Proviso ‘a’ speaks 
of minimum qualifications as may be laid down for a person to be appointed 
to the post. The learned counsel submits that till date the Sindh Government 
has not framed rules which could define the proposed minimum 
qualifications of a deputationist mentioned in the Ordinance. He submitted 
that if any statute is conditional, it cannot be made operative unless the 
conditions laid down are fulfilled. According to him, Ordinance VI of 2012 
for the aforesaid reason is violative of the Act of 1973 and the rules framed 
there-under, and does not authorize the competent authority and /or the 
Chief Minister to order transfer of a non-civil servant in the Sindh 
Government on deputation.  
 
49. 
 
He next contended that the word ‘absorption’ used in the said 
Ordinance is also a misnomer. Neither the Sindh Civil Servants Act nor the 
rules framed there-under has given any definition to the term ‘absorption’. 
Under Ordinance VI of 2012, an amendment was brought in the section 2 
sub-section (i) (a) wherein the term ‘Absorption’ was defined which means 
appointment of a person by way of absorption in accordance with sub-
Crl.Org.P.No.89/11 etc.  
39
section 2 of section 10-A. He next contended that the Sindh Civil Servants 
Act provides three modes of appointment, which are given in the Rules of 
1974. These are:- 
1. 
Recruitment by initial appointment. 
2. 
Appointment by promotion. 
3. 
Appointment by transfer 
These appointments are regulated by the Act of 1973. In the case of Iqbal 
Ahmed vs. Province of Sindh (1996 PLC (CS) 955), a learned Division 
Bench has defined the word ‘Absorption’, which reads as under:- 
“Absorption was nothing but appointment by transfer and 
same could only be made under Rule 9(1) of Sindh Civil 
Servant (Appointment, Promotion and Transfer) Rules, 
1974.  
 
50. 
 
He next contended that the issue of absorption was dealt with in 
a judgment of the learned Division Bench in the case of Deedar Hussain 
Jakhrani vs. Federation of Pakistan (2011 PLC (CS) 203 R). This Court in 
the case of Dr. Anwar Ali Sahito vs. Federation of Pakistan (PLD 2002 SC 
101 rel. (158-P) has held that “reinstatement and absorption for intents and 
purposes are synonymous expression”. This view was, however, revisited by 
this Court in the case of M.D Sui Southern Gas Company Ltd. Karachi vs. 
Ghulam Abbas (2003 PLC (CS) 796 (833-N)). It was contended that 
absorption would simply mean appointment by way of transfer. He 
submitted that appointment by way of transfer have two categories. He 
submitted that under Rule 9-A of the Rules of 1974, an employee who is 
rendered surplus on account of abolition of his post or on permanently 
taking over the administration of the autonomous body by the Government, 
can be absorbed on transfer to any other department provided that such 
Crl.Org.P.No.89/11 etc.  
40
person possesses such qualifications laid down under the rules of 
appointment besides the other three conditions referred to therein. He 
contended that even an employee of an autonomous body can be absorbed 
under Rule 9-A of the Rules of 1974, if his post is abolished or the 
autonomous body in which he was serving is taken over by the Sindh 
Government. In absence of these two pre-conditions, Rule 9-A could not be 
invoked to absorb an employee of an autonomous body in the Sindh 
Government. He next contended that absorption in such like matters is to be 
regulated by regular appointment and in support of his contention has relied 
on an unreported judgment of this Court in the case of Agha Altaf Nabi vs. 
Govt. of Sindh in C.P.L.A No.147-K/1999 decided on 22.07.99. 
 
51. 
 
He next contended that seniority of a civil servant is granted on 
his regular appointment in all the three modes of appointment under the 
Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1973. In 
support of his contention, he has relied on the case of Nazir Ahmed Panwar 
vs. Government of Sindh (2005 SCMR 1814). He next contended that Rule 
9(1) further provided appointment by transfer only to those persons holding 
appointment on regular basis in the same grade in which post to be filled 
exists. According to the learned counsel the impugned Ordinance provides 
exception by introducing the term “Absorption”. Under Rule 9-A of the 
Rules of 1974, appointment of a person on transfer basis could be made 
subject to the condition that the civil servant must be holding appointment 
on regular basis in the same basic scale. Learned counsel submits that this 
Rule 9-A is to be read with Rule 7(2) and (3) of the Rules 1974, which 
relates to civil servants. According to him, sub-Rule (3) of Rule 7 provides 
Crl.Org.P.No.89/11 etc.  
41
that unless Provincial Selection Board recommends, appointment by 
promotion or transfer to a post in Basic Scale 18 cannot be made on regular 
basis. He in support of his arguments has relied upon the case of 
Government of Punjab vs Mrs. Kishwer Alam (PLD 1997 SC 578 A & B). 
While concluding his arguments on the issue of absorption, he submitted 
that Rule 17 of the Schedule 6 read with Article 5 and 6 of the Rules of 
Business, 1986, procedure is provided for floating the summary. According 
to him, the Rules do not permit any official of the Sindh Government to float 
a Summary of a non-civil servant.  
52. 
 
Mr. M.M Aqil Awan, learned Sr.ASC, has filed his written 
synopsis on the issue of ‘out of turn promotions’ and has also made his oral 
submissions. According to him, the Act of 1973, does not provide any 
mechanism under the impugned instruments for granting out of turn 
promotions. He submitted that promotions are of two kinds: one by the 
government under Section 9 of the Act of 1973 and the other is out of turn 
promotion which is granted under Section 9-A of the Act of 1973. He 
submitted that in the year 2002, Section 9-A was introduced by amending 
the Act of 1973 and was given protection by XVII Amendment under the 
Constitution. The said amended section 9-A remained on the statute book till 
it was omitted by an Ordinance on 27.02.2008. According to him, the said 
Ordinance was not placed before the Provincial Assembly, therefore, in 
terms of Article 264 of the Constitution, on lapse of the Ordinance, Section 
9-A stood revived. He submitted that the effect of the lapse/repeal of the 
Ordinance has been decided by this Court in the case of Pir Sabir Shah vs. 
Shah Muhammad Khan (PLD 1995 SC 66 (205-ggg)) and Federation of 
Pakistan vs. M. Nawaz Khokhar (PLD 2000 SC 26 (45-g)).  
Crl.Org.P.No.89/11 etc.  
42
 
53. 
 
According to him, section 9-A of the Act of 1973 provided that 
“out of turn promotions” would be granted in such manner as may be 
prescribed. The word ‘prescribed’ has been defined under section 2 of the 
Act of 1973. In this background, the Provincial Government framed and 
added Rule 8-B in the Rules of 1974. The rules were framed in exercise of 
powers conferred under section 26 of the Act of 1973. The said Rule 8-B 
amended through Notification dated 10.02.2005 was omitted by a second 
Notification dated 11.05.2005. Thereafter, the Sindh High Court on 
31.03.2009, in its judgment passed in C.P.No.1595/2005 directed the Sindh 
Government to revive Rule 8-B of the Rules of 1974 and examine the case 
of each police officer, who was granted out of turn promotion. This 
judgment of the High Court was never implemented by the Sindh 
Government and on 04.09.2012 impugned Ordinance No.VI of 2012 was 
promulgated by which section 9-A sub-section (3) was again amended 
which reads:- 
“9-A. Notwithstanding anything contained in this Act or 
any other Law for the time being in force or any judgment 
of any court, a civil servant who provenly exhibits the act of 
gallantry while performing his duties or very exceptional 
performance, beyond the call of duty, may be granted out of 
turn promotion or award or reward by Government (CM)”.  
 
54. 
 
According to Mr. M.M. Aqil Awan by this impugned 
Ordinance, the legislature has omitted the term ‘prescribed’ in section 9-A 
as a result whereof Rule 8-B of the Rules of 1974 stood omitted. According 
to him, now it is the Chief Minister alone who has the powers to grant out of 
turn promotions as requirement of the committee under Rule 8-B was done 
away. He next contended that the term ‘out of turn promotion’ was not 
Crl.Org.P.No.89/11 etc.  
43
defined under the impugned Ordinance nor does it provide any legal cover 
or validity to the past promotions granted on out of turn basis and remained 
the subject-matter of litigation in cases mentioned hereinabove. The 
impugned Ordinance VI of 2012 did not debar the Government of Sindh 
from complying with the judgment of the Sindh High Court passed in earlier 
litigation on 31.03.2009. The Government realizing the aforesaid mistakes 
immediately issued another impugned Ordinance No.VII of 2012 on 
05.09.2012 wherein sub-section 2 of section 9-A was introduced, which 
reads:- 
“All the out of turn promotions made under Section 9-A 
before the commencement of this Ordinance, shall be 
deemed to have been made under this section on regular 
basis.” 
The impugned Ordinance VII of 2012, did not have a non-obstante clause as 
section 9-A was amended by Sindh Ordinance VI of 2012 and previously it 
was amended by Sindh Ordinance IV of 2002 dated 22.1.2002. The 
impugned Ordinance VII of 2012 did not mention the date from which, out 
of turn promotions made to different police officers or civil servants would 
be treated on regular basis under its deeming clause. However, both these 
impugned Ordinances lapsed in terms of Article 128 of the Constitution. 
After the lapse of the impugned Ordinances, Act No.1 of 2013 was 
promulgated under which after Section 23, new sub-section 23-A was 
inserted by way of amendment with three sub-clauses, which reads:- 
23-A. Regularization of out of turn promotions. (1) 
Notwithstanding anything contained in any law, or order or 
judgment of any Court, all out of turn promotions made 
immediately before the commencement of the Sindh Civil 
Servants (Amendment) Act, 2013, under section 9-A by 
Government or competent authority or otherwise by the 
Crl.Org.P.No.89/11 etc.  
44
police department shall stand regularized from the dates of 
such promotions. 
*(2) 
All promotions regularized under sub-section (1) 
above and all notifications, proceedings, instructions or 
orders issued in pursuance of such promotions are hereby 
affirmed and shall be deemed always to have been validly 
made.  
(3)  
A person aggrieved by any promotion regularized 
under sub-section (1) may file an appeal in the Sindh 
Service Tribunal, within thirty days of the commencement 
of the Sindh Civil Servants (Amendment) Act, 2013”.     
 
Act 1 of 2013 only regularized out of turn promotion in the police 
department. Realizing this mistake, another Act XXIV of 2013 was 
promulgated on 15.03.2013, wherein after section 23(A), by way of 
amendment, another section 23(B) consisting of three sub-sections was 
inserted, which reads:- 
“23-B (1) Notwithstanding anything contained in this Act 
or rules made there-under, or in any decree, order or 
judgment of a Court, an employee absorbed, or as the case 
may be, promoted under section 9-A as a civil servant 
against a post in connection with the affairs of the Province 
and holding such post immediately before the date of 
commencement of the Sindh Civil Servants (Second 
Amendment) Act, 2013, shall be deemed to have been 
validly absorbed, or as the case may be, promoted to that 
post on regular basis with effect from the date of his 
absorption, as the case may be, promotion.” 
(2) 
A person aggrieved by any absorption, or as the 
case may be, promotion regularized under sub-section 91) 
may file any appeal in the Sindh Service Tribunal, within 
thirty days of the commencement of the Sindh Civil 
Servants (Second Amendment) Act, 2013”.  
 
55. 
 
Mr. M.M. Aqil Awan submitted that the difference between the 
two impugned Acts is that the former speaks of only out of turn promotions 
Crl.Org.P.No.89/11 etc.  
45
in the police department whereas the later impugned Act validates not only 
absorption of the employees but also out of turn promotions under section 9-
A of the Act of 1973 from the date of their absorption or promotion.  
  
 
56. 
 
Mr. Yawar Farooqi, learned ASC, representing Agha Masood 
Abbas, has filed his written synopsis by way of C.M.A.No.2695 of 2013, 
and has also made oral submissions. He contended that by the impugned Act 
XVII of 2011, 1085 employees were absorbed and is not person specific. 
According to him, the impugned Act was promulgated to validate the 
absorptions of the employees made from time to time since 1994. He further 
submitted that impugned Ordinance VI of 2012 has amended section 10-A 
of the Act of 1973, which empowers the Chief Minister to absorb 
permanently any employee in the Sindh Government. He contended that 
absorption is a legal concept and all provinces in the country appoint the 
employees by absorption. He submitted that the impugned Act of 2013 
regularized the absorptions made in the Sindh Government, which was 
within the competence of Assembly.  
 
57. 
 
He next submitted that the concept of deputation is a legal one. 
According to him, the Sindh Government while ordering transfer by 
deputation is only required to establish that exigency existed. In this regard, 
he has relied upon the case of Fauji Foundation & another vs. Shamimur 
Rehman (PLD 1983 SC 457) and Mehr Zulfiqar Ali Babu vs. Government of 
the Punjab (PLD 1997 SC 11). He submitted that in the case of Elahi Cotton 
Mills, this Court has held that the Parliament can nullify the effect of a 
judgment of the Court in exercise of its legislative powers. He submitted that 
Crl.Org.P.No.89/11 etc.  
46
his client was validly absorbed and conceded that there may be cases where 
few of the employees were wrongly absorbed, but that would not empower 
this Court to strike down the impugned legislative instruments.  
 
58. 
 
He further contended that Article 240 of the Constitution is not 
directly hit by the impugned instruments and has referred to Articles 14 and 
16 of the Indian Constitution under which the rights of the Civil servants 
were independently guaranteed whereas according to him under our 
Constitution, civil servants have not been provided such protection. He 
submitted that the issues arising out of the impugned legislation be 
remanded to a Committee to examine the cases of out of turn promotion 
under Rule 8-B or to the Provincial Assembly to review the law.  
 
59. 
 
Mr. Anwar Mansoor Khan representing Respondent Sheraz 
Asghar Sheikh has contended that the appointment of his client was 
validated under the impugned Act XVII of 2011 and Act XXIV of 2013. 
According to him the impugned legislative instruments are valid piece of 
legislation and fall within the competence of the legislature. He submitted 
that the impugned instruments were promulgated to remove the deficiencies 
and illegalities committed by the Sindh Government. According to him, this 
Court in the case of Fauji Foundation vs Shamimur Rehman (PLD 1983 SC 
457) has held that mala fide cannot be attributed to the legislature. He 
submitted that in order to strike down the legislative instruments, it is 
necessary that the Court has to be satisfied that it impinges upon 
fundamental rights of the citizens under Articles 8 and /or under Article 240 
of the Constitution. According to him, the issue raised in these proceedings 
Crl.Org.P.No.89/11 etc.  
47
is confined to individual grievance which could be redressed by approaching 
the appropriate forum.  
 
60. 
 
He next contended that the definition of deputation provided 
under the Act of 1973 includes the person employed in an Authority, who 
can be transferred and posted in the Sindh Government. He has relied upon 
the case of C.Munni Appa Nido vs. State of Karnataka (1976 (4) SCC 543 
(797)), which deals with the absorption while the case of (2002 (9) SCC 
485) deals with the deputation. Mr. Anwar Mansoor Khan has already filed 
his written arguments by way of C.M.A.No.2696 of 2013, which he adopts. 
He, however, in his oral arguments contends that the principles of statutory 
and Constitutional interpretation have been propounded by this Court in the 
case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry vs. President 
of Pakistan through Secretary and others (PLD 2010 SC 61). He further 
contended that the Constitution must be read as an organic instrument and is 
to be interpreted in the light of changes in society. In support of his 
contention he has relied upon the cases of Munir Hussain Bhatti Advocate 
and others vs. Federation of Pakistan and another (PLD 2011 SC 407), Qazi 
Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others vs. General 
Pervez Musharraf Chief Executive and others (PLD 2002 SC 853), Mst. 
Attiyya Bibi Khan and others vs. Federation of Pakistan and others (2001 
SCMR 1161) and Dr. M.Aslam Khaki vs. Syed Muhammad Hashim and 2 
others (PLD 2000 SC 225).  
 
61.  
 
He next contended that Constitution is a living document to be 
interpreted in the widest manner and judicial approach has to be dynamic, 
progressive and liberal. In support of his contention, he has relied upon the 
Crl.Org.P.No.89/11 etc.  
48
cases of Pakistan Tobacco Company Ltd. & others Vs Government of 
N.W.F.P through Secretary Law and others (PLD 2002 SC 460), Messrs 
Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan through 
Secretary M/o Finance, Islamabad and 6 others (1997 PTD 1555), Al-Jehad 
Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324), Pir Sabir 
Shah Vs. Shad Muhammad Khan Member Provincial Assembly NWFP and 
another (PLD 1995 SC 66), Pakistan Industrial Development Corporation vs.  
Pakistan (1992 SCMR 891). As regards the Articles relating to fundamental 
rights he submitted that they be construed liberally to provide maximum 
possible relief and has relied upon the cases of Pakistan Tobacco Company 
Ltd. and another vs. Federation of Pakistan and others (1999 SCMR 382), 
Mohtarma Benazir Bhutto and another Vs. President of Pakistan and others 
(PLD 1998 SC 388), Wukala Mahaz Barai Tahafaz Dastoor and another Vs. 
Federation of Pakistan and others (PLD 1998 SC 1263), Mushtaq Ahmed 
Mohal and others vs. The Honourable Lahore High Court Lahore and others 
(1997 SCMR 1043) and Mian Muhammad Nawaz Sharif Vs. President of 
Pakistan and others (PLD 1993 SC 473).  
 
62. 
 
The next contention of Mr. Anwar Mansoor Khan is that in case 
of conflict between two provisions, the Courts have to harmonize conflicting 
provisions and declare which one is to be preferred if conflict cannot be 
resolved. Provision conferring lesser rights must yield in favour of provision 
conferring higher rights and in support of his such contentions he has relied 
upon the cases reported as Accountant General Sindh and others Vs. Ahmed 
Ali U. Qureshi and others (PLD 2008 SC 522), Wukala Mahaz Barai 
Tahafaz Dastoor and another vs. Federation of Pakistan and others (PLD 
Crl.Org.P.No.89/11 etc.  
49
1998 SC 1263), Shahid Nabi Malik and another vs. Chief Election 
Commissioner, Islamabad and 7 others (PLD 1997 SC 32), Mahmood Khan 
Achakzai and others vs. Federation of Pakistan and others (PLD 1997 SC 
426), Al-Jehad Trust and others vs. Federation of Pakistan and others (PLD 
1996 SC 324) and Pir Sabir Shah vs. Shad Muhammad Khan Member 
Provincial Assembly NWFP and another  (PLD 1995 SC 66), however, in 
the cases of Wukala Mahaz Barai Tahafaz Dastoor and another vs. 
Federation of Pakistan and others (PLD 1998 SC 1263) and Al-Jehad Trust 
and others vs. Federation of Pakistan and others (PLD 1996 SC 324), it is 
held that conflict between two provisions/constructions corresponding 
closely to and giving effect to dominant intent will be preferred to ensure 
harmonious working.  
 
63.  
 
He next contended that Courts can make use of the legislative 
history for the purpose of construction, interpreting provisions in light of 
circumstances that produced them. In support of his contention he has relied 
upon the cases of Messrs Gadoon Textile Mills and 814 others vs. WAPDA 
and others (1997 SCMR 641) and Miss Benazir Bhutto Vs. Federation of 
Pakistan and another (PLD 1988 SC 416).  
 
64.  
 
Mr. Anwar Mansoor Khan submitted that powers of legislature 
have been propounded by this Court in various judgments and has relied 
upon the following judgments:- 
i. 
Fauji Foundation vs. Shamimur Rehman  
(PLD 1983 SC 457). 
 
ii. 
Independent Newspaper Corporation Vs. Chairman Fourth 
Wage Board (1993 SCMR 1533). 
 
Crl.Org.P.No.89/11 etc.  
50
iii. 
Executive District Officer (Revenue) Vs. Ijaz Hussain  
(2012 PLC (C.S) 917). 
 
iv. 
Lila Dhar Vs. State of Rajasthan & others  
(AIR 1981 SC 1777). 
 
v. 
Dr. Mobashir Hassan and others Vs. Federation of Pakistan 
(PLD 2010 SC 265). 
 
vi. 
Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan  
and others (PLD 1997 SC 582). 
 
vii. 
Mahmood Khan Achakzai & others Vs. Federation of Pakistan 
and others (PLD 1997 SC 426). 
 
viii. The Punjab Province Vs. Malik Khizar Hayat Khan Tiwana 
(PLD 1956 FC 200). 
 
ix. 
Haider Automobile Ltd. Vs. Pakistan  
(PLD 1969 SC 623). 
 
x. 
Mehr Zulfiqar Ali Babu and others Vs. Government of Punjab 
and others (PLD 1997 SC 11). 
 
xi. 
The State Vs. Zia-ur-Rehman and others  
(PLD 1973 SC 49). 
 
xii. 
Mamukanjan Cotton Factory Vs. The Punjab Province and 
others (PLD 1975 SC 50). 
  
65. 
 
Mr. Mehmood Ahmed Sheikh, learned AOR, representing the 
respondent No.6 has adopted the arguments of Dr. Farogh Naseem. Mr. 
Abul Hassan learned ASC, representing respondent No.8 has adopted the 
arguments of Mr. M.M. Aqil Awan.  
 
66. 
 
Mehmood 
Akhter 
Naqvi, 
Applicant 
in 
person 
in 
C.M.As.No.278-K of 2013, 86-K of 2013, 255-K of 2013 and 275-K of 
2013, has submitted that the impugned instruments have been introduced to 
give favours to the blue-eyed of the politicians. He submitted that this Court 
Crl.Org.P.No.89/11 etc.  
51
in the case of Muhammad Nadeem Arif vs. Inspector General of Police, 
Punjab, Lahore (2010 PLC (CS) 924  Relevant (934)), has held that out of 
turn promotion is violative of Article 9 of the Constitution and has also 
declared it as un-Islamic. According to him, after the judgment of this Court, 
holding out of turn promotions violative of Article 9 and 2-A of the 
Constitution, the Provincial Assembly cannot legislate a law empowering 
Chief Minister to grant out of turn promotions. He submitted that the Chief 
Minister Sindh, on the strength of the impugned legislation, has absorbed 
employees (non-civil servants). According to him, the manner in which the 
blue-eyed employees were extended favours through these impugned 
instruments is unprecedented which has direct bearing on the valuable rights 
of the civil servants of the Sindh Government which run in hundreds of 
thousands. According to him, the impugned instruments should be declared 
void and ultra vires of the Constitution.  
 
67. 
 
Inspector Sarwar Khan has filed C.M.A.No.245 of 2013 and 
Inspector Baharuddin Babar has filed C.M.A.No.247 of 2013, in which they 
state that seven DSPs were appointed directly by the Chief Minister without 
following the procedure provided in the recruitment rules in the recent past. 
According to them, one Waseem Khawaja, who has been appointed DSP, 
was ordered to be repatriated to Excise Department by this Court and after 
his repatriation, under the garb of the impugned legislation, Waseem 
Khawaja was directly appointed as DSP. He further submitted that the two 
persons namely Rizwan Soomro and Riaz Soomro, brothers of the then Law 
Minister of Sindh, were initially brought on deputation in Sindh Police and 
appointed and absorbed as D.S.Ps in police, whereafter they were given 
Crl.Org.P.No.89/11 etc.  
52
backdated seniority of the previous departments and were also granted out of 
turn promotions under the impugned legislation. Like-wise many other 
persons/employees who were closely related and /or friends of the Members 
of Sindh Provincial Assembly were extended favours by transferring them 
on deputation and absorbing them in the Sindh Government with accelerated 
promotions with backdated seniority in colourable exercise of powers 
conferred under the impugned legislation.  
 
68. 
 
During the hearing of the matter, Constitution Petition No.21 of 
2013 was filed by Choudhry Afrasayab in which vires of all the impugned 
legislations were challenged.  We had issued notice to the Advocate General 
for today. Ch. Afrasiab Khan, learned ASC, while adopting the arguments of 
Mr. M.M. Aqil Awan has submitted that in the case of Elahi Cotton Mills, 
this Court has declined to strike down the legislative instrument observing at 
pages 655- 679 that the issue involved has direct bearing on the economy of 
the country and, therefore, the legislative instruments were not being 
interfered with. He submitted that the case in hand stands on different 
footing and the principle laid down in the said case would not be extended to 
cover the present proceedings. He submitted that all the instruments 
challenged in these proceedings are liable to be struck down being violative 
of Articles 4, 8, 9, 25, 240 and 242 of the Constitution.  
 
69.  
 
On the other hand, Mr. Sarwar Khan, learned Additional 
Advocate General submits that the Advocate General Sindh has already filed 
written synopsis by way of C.M.A.No.280/2013 and has adopted his earlier 
arguments made in addition to the written synopsis. 
 
Crl.Org.P.No.89/11 etc.  
53
70. 
 
Additionally there are number of applications sent by the 
different civil servants/police officers, challenging the actions of the 
Executive/Government claiming that they were directly affected by 
impugned instruments. Maqsood Ahmed D.S.P in his CMA No.42-K of 
2012 states that he is in the police service since 1973 and was promoted as 
Sub Inspector on 01.04.1980 and Inspector on 25.03.1990 and DSP in 
March 1998. He in his application claims that his juniors were promoted to 
the Rank of SSP on account of out of turn promotions. He claims that under 
Rule 8-B out of turn promotion can only be given one time in the entire 
service, but many police officers were granted four times out of turn 
promotions in violation of the Rule 8-B. Even otherwise, accelerated 
promotion negates Articles 4, 9, 18 and 25 of the Constitution which 
guarantee equal protection to every citizen. He further claims that many 
employees who came on deputation, in deviation of the law were absorbed 
in Police Department and granted out of turn promotions with backdated 
seniority. According to him this act of the Government has affected the 
working of the police. He has further stated in his application that out of turn 
promotions in public Department generates frustration amongst the ranks of 
the police. Along with his application, he has annexed different orders of the 
Sindh Government by which the out of turn promotions were granted to 
different police officers/civil servants. We have had the occasion to see the 
copy of one of the Summary, which he has filed along with the application. 
It mentions a request from one Dost Ali Baloch for grant of Selection Grade 
promotion from BS-18 to BS-19 in Sindh Police. In order to show the 
working of the Sindh Government, we were provided copy of summary of 
Dosti Ali Baloach which is placed/pasted here-under:- 
Crl.Org.P.No.89/11 etc.  
54
 
 
71. 
 
The applicant has also mentioned 15 police officers, who were 
absorbed in police service from different autonomous bodies/organizations 
and Departments challenging their absorption/appointments, inter alia, on 
the ground that they were absorbed in the Sindh Government for political 
considerations and are now holding key positions in Sindh Police after 
Crl.Org.P.No.89/11 etc.  
55
getting out of turn promotions and backdated seniority. Amongst the 
officers, he mentioned the name of Dost Ali Baloch, who was from the 
Intelligence Bureau and came on deputation in 1994, permanently absorbed 
in Sindh Police in 1998 and was given backdated seniority and presently he 
is in Grade-20. The Sindh Government in its comments has stated that in 
1994, Dost Ali Baloach was transferred on deputation in Sindh Police. In the 
year 1995 he was promoted as Deputy Director (BS-18). He was absorbed in 
Sindh Police as SP on 14.10.1998. He was allowed backdated seniority 
w.e.f. 26.09.1995. In the year 2011, he was unprecedently promoted to BS-
20 by the Sindh Government after his encadrement in Police Service of 
Pakistan in the Federal Government. He was appointed as Consultant or 
Director (Finance) and posted in the rank of DIGP. The Sindh Government 
has wilfully concealed in their comments, the out of turn promotion of Dost 
Ali Baloach from BS-18 to BS-19. What really has disturbed us is that in 
order to promote an officer from B.S-19 to B.S-20, the law requires the 
officer to serve in the department for a certain term but in his case, this 
restriction has been done away. Additionally after B.S-19, Dost Ali Baloach 
could only have been promoted to B.S-20 by a Board constituted by the 
Federal Government and the Sindh Government had no business to promote 
him. We, however, refrain from commenting upon the working of Sindh 
Government. There may be many more cases of such like favours.   
 
72. 
 
The applicant Maqsood Ahmed has further placed before us the 
material pertaining to service record of Mohammad Malik, Director in the 
FIA, who was deputed in Sindh Government in 2007 and promoted as SSP. 
According to him, Mohammad Malik was absorbed in Sindh Government in 
Crl.Org.P.No.89/11 etc.  
56
BS-19 and was given backdated seniority w.e.f 11.09.2006 and thereafter 
was promoted to BS-20 along with Dost Ali Baloch on 28.09.2011. In his 
case, the Sindh Government in its para-wise comments has stated that this 
officer was transferred on deputation in 2007. He was absorbed as SSP (BS-
19) on 31.10.2007. He was assigned seniority w.e.f 11.09.2006 and was 
promoted as Director General (BS-20). At present he is working as DIGP 
w.e.f 01.10.2011. His case is identical to the one which we have already 
taken note of in the earlier para. The Government of Sindh in their 
comments has not stated a single word as to whether both of these officers 
after their absorption in Sindh Police were sent for police training as 
provided under recruitment rules. We believe that without such training in 
Police Academy, a police officer cannot put on uniform.  
 
73. 
  
The applicant D.S.P Maqsood further mentioned in his 
application that Mohammad Riaz Soomro, who came on deputation from 
ANF and in February 2008 was absorbed and appointed in BS-17 as DSP. 
Thereafter he was assigned backdated seniority in the rank of D.S.P w.e.f 
24.08.1989 and was promoted as S.P and is serving in O.P.S as SSP 
Mirpurkhas. The Sindh Government in their comments has stated that the 
officer was permanently absorbed on 26.02.2008 and his seniority was fixed 
under the orders dated 20.05.2008 of the Sindh High Court passed in 
C.P.No.D-456/2008 w.e.f 24.08.1989. On 23.07.2008 Riaz Soomro, on the 
recommendations of Departmental Selection Board was promoted as SP in 
BS-18. On 23.11.2010 he was promoted to BS-19 against future vacancy. 
The comments of Sindh Government reflect how favours were extended to 
him. The comments do not show that the Sindh High Court decided his case 
Crl.Org.P.No.89/11 etc.  
57
on merits nor it mention that the out of turn promotion was granted to him 
on recommendations of the Committee notified under Rule 8-B.  
 
74.  
 
Mohammad Rizwan Soomro, the other brother of former Law 
Minister Sindh, was on deputation, absorbed with backdated seniority and 
then granted out of turn promotion. The High Court did not pass orders on 
merits nor his case of promotion was recommended by the Committee under 
Rule 8-B.   
 
75. 
  
The applicant mentions the case of Mohammad Ali Baloch, 
brother of Dost Ali Baloch, who was an Assistant Director Computer in the 
I.T. Department. His services were regularized in regular police and he was 
appointed as DSP by way of transfer with all backdated service benefits 
since 2003. In 2007 he was promoted to the rank of S.P (BS-18) against 
future vacancy and is presently serving as S.P Tando Mohammad Khan. The 
Sindh Government while justifying his out of turn promotion, has stated in 
its comments that while posted as Taluka Police officer, Tando Jam, District 
Hyderabad he displayed matchless gallantry act in busting the network of 
hardcore terrorists. He conducted raids and arrested five members belonging 
to the gang of Sindh Liberation Army.  
 
76. 
 
Abdul Hadi Bullo an officer of OMG was transferred on 
deputation in Sindh police in 2003 and was absorbed in Police Department 
with backdated seniority in BS-18 and was encadred in PSP in 2011.  In his 
case Sindh Government has mentioned that on the recommendations of the 
Prime Minister of Pakistan, he was transfer and appointed in Police 
Department on Shaheed Quota against the Shahadat of his brother Abdul 
Crl.Org.P.No.89/11 etc.  
58
Aziz Bullo PSP/DIGP on 23.6.2003. Thereafter on 19.12.2007, he was 
assigned backdated seniority in BS-18 w.e.f. 23.02.1998. He was encadred 
in police service of Pakistan on 25.10.2011 and is presently posted as 
SSP/Principal PTC Shahdadpur.  
 
77.  
 
Shahid Hussain Mahessar, who came on deputation from I.B in 
2009. In 2011 though he was repatriated under the orders of the Court to I.B. 
In his case the Sindh Government has furnished comments stating therein 
that in the year 2009 his services were placed at the disposal of Sindh 
Government and he was posted as ADIGP/Special Branch Sindh, Karachi. 
He was recommended for absorption by Addl. AIG/ Special Branch Sindh. 
In the year 2011 vide Notification dated 04.01.2011 his deputation was 
cancelled/withdrawn. He filed a Constitutional Petition in the High Court of 
Sindh and obtained status quo order. Thereafter the said officer was 
appointed and transferred as SP (BS-18) in Sindh Police on 11.10.2011. 
There is no mention as to how he was granted BS-18. 
 
78.  
 
Zameer Ahmed Abbasi Assistant Director NAB came on 
deputation in police Department in 2008. He was sent on training and after 
completion of training he was posted as SPO/Darakshan Clifton, Karachi in 
2010. In his case Sindh Government has stated that his services were placed 
at the disposal of Sindh Police on deputation in the year 2008. After training 
he was assigned regular posting as DSP in Sindh Police. In the year 2010 his 
deputation was cancelled/withdrawn. He filed Constitutional Petition in 
Sindh High Court and in the said petition his order of repatriation was 
suspended. Recently Sindh High Court has ordered to issue a formal 
Notification of his absorption extending him benefit of the impugned 
Crl.Org.P.No.89/11 etc.  
59
legislation. Vide letter dated 21.11.2011, his matter is referred to the 
Secretary Services Government of Sindh for filing leave to appeal against 
the judgment of the Sindh High Court. The issue of his absorption was not 
decided on merits by the High Court, nor order of this Court for his 
repatriation to the parent department was challenged.  
 
79. 
 
 Shiraz Asghar Shaikh came from PEMRA in Sindh Police on 
deputation in the year 2008 on the desire of Chief Minister Sindh. He was 
appointed as DSP. However, in the year 2011 he was recommended for 
absorption in police Department. In his case, the Sindh Government in its 
comments has stated that at the desire of Chief Minister his services were 
placed at the disposal of Sindh Government in 2008 for a period of three 
years. Thereafter he was posted in Sindh Police. His case was placed before 
a Committee for absorption in Sindh Police. His Notification of absorption 
was cancelled/withdrawn. However, he filed Constitutional petition before 
Sindh High Court wherein his order of repatriation was suspended and he 
was allowed to continue in Sindh Police till further orders. The Sindh High 
Court ordered for issuance of his formal Notification of absorption. The 
Home Department has absorbed him on 11.06.2012 in pursuance of the 
Court’s order extending him the benefit of the impugned legislation without 
examining the effect of orders of this Court for his repatriation to the parent 
department.  
 
80. 
 
One Mohammad Yaqub Almani filed an application wherein he 
has stated that initially he was appointed as DSP in 1991 in Sindh Police. In 
1997 he was promoted as S.P.  He further submitted that on 02.05.2012 this 
Court ordered for repatriation of all the deputationists to their parent 
Crl.Org.P.No.89/11 etc.  
60
departments. The Sindh Government, however, was allowed to retain eight 
officers on deputation till the completion of projects, on which the 
deputationists were working. The Sindh Government from time to time 
extended the period of deputation of some of the officers. The Sindh 
Government sought services of Abdul Wahab Shaikh Director Intelligence 
Bureau (BS-19) and posted him in Sindh Police on deputation. He therefore, 
prayed for repatriation of Abdul Wahab Shaikh to his parent department.  
 
81. 
 
One Syed Mehboob Ali Shah Deputy Director (MI&E) 
Criminal Prosecution  has also filed an application under Order XXXIII Rule 
6 of the Supreme Court Rules 1980, wherein it is mentioned that 150 
prosecutors were posted by judgment dated 01.04.2009 of the High Court 
and leave sought by Province of Sindh was refused. However, it is stated 
that high ups in Law Department were not providing facilities to them and 
instead creating hindrances in their work. He pleaded that on 02.05.2012 in 
the instant matter this Court ordered for repatriation of the deputationist but 
the high-ups in the Law Department did not comply with the orders which 
amounts to contempt of the authority of this Court. It is further pleaded that 
Prosecution/Law Department is being run by deputationists, employees on  
detailment and non-cadre officers, who do not have matching qualifications. 
It is further claimed that postings of Mr. Ahmed Nawaz Jagirani Special 
Secretary (BS-20) and Dr. Sarwat Faheem Director Monitoring, 
Implementation and Evaluation (BS-19) in Criminal Prosecution Service is 
in defiance of the order dated 03.09.2012 passed by this Court. It is further 
pleaded that Dr. Sarwat Faheem Director Monitoring, Implementation and 
Evaluation is still holding the post and was relieved only on papers. It is 
Crl.Org.P.No.89/11 etc.  
61
further alleged that extension of Prosecutor General Sindh Criminal 
Prosecution Service for further three years is also against the judgment of 
this Court passed on 10.03.2011 in the case of Shahid Orakzai and Ch. Nisar 
Ali Khan. Lastly he prayed for impleading him as party to the present 
proceedings. We have noticed that in the lists mentioning the names of the 
‘deputationists’ provided by the Secretary Services, did not contain name of 
any deputationist from the Law Department or Prosecution Branch for which 
Secretary Law and Secretary Prosecution (Wing) are responsible who 
wilfully have withheld list of the deputationists working in their 
Departments with the object to extend favour to them.     
 
82. 
 
One Azhar Aslam, who was Instructor in BS-16 Vocational 
Training Center, Latifabad, Hyderabad, STEVTA Sindh was transferred and 
his services were placed at the disposal of Enquiries and Anti Corruption 
Establishment, SGA&CD, Government of Sindh on deputation basis for a 
period of two years on 18.12.2012. The order is reproduced herein-under:- 
 
Crl.Org.P.No.89/11 etc.  
62
 
 
  
83. 
 
One Shiraz Ahmed Zaidi, Assistant Director (BS-17) Lyari 
Development Authority, was transferred and his services were placed at the 
disposal of Chairman, Enquiries & Anti-Corruption Establishment Sindh, on 
deputation basis on 15.11.2012. The order is reproduced herein under:- 
 
 
84. 
 
One Fakhruddin Ahmed Babar Abro brother of former MPA, 
who was initially in the Board of Education was absorbed and appointed as 
Deputy Director Anti Corruption on 26.11.2012. The Notification is 
reproduced herein under:- 
Crl.Org.P.No.89/11 etc.  
63
 
 
 
85. 
 
An application of Attaullah son of Khuda Bux Phulpoto, 
brother of Saifullah Phulpoto of Khairpur addressed to the Chief Minister 
Sindh with a request for absorption/appointment of his brother by transfer as 
Inspector Anti-Corruption Establishment Sindh of Saifuallah Phulpoto, is 
reproduced herein below:- 
Crl.Org.P.No.89/11 etc.  
64
 
 
Crl.Org.P.No.89/11 etc.  
65
 
 
 
 
The Chief Minister marked the aforesaid application to the C.S with a note 
to examine and put up.   
 
Crl.Org.P.No.89/11 etc.  
66
86. 
 
Saifullah Phulpoto pursuant to the application of his brother 
was appointed and transferred as Inspector in Anti-Corruption Establishment 
Sindh on 04th July 2012. For appointment as Inspector in ACE, a candidate 
must have a Masters Degree in IInd Division, a Law Degree and 2 years 
experience under the rules. The Chief Minister Sindh overlooked the 
mandatory qualifications and appointed him as Inspector by issuing 
following Notification:- 
 
 
87. 
 
Mr. Saifullah Phulpoto was again promoted as an Assistant 
Director in Anti-Corruption Establishment on 20.09.2012 bypassing the 
mandatory requirement of 5 years experience for promotion from Inspector 
Crl.Org.P.No.89/11 etc.  
67
to Assistant Director. The Notification of 20th September 2012 issued by the 
Sindh Government is reproduced herein below:- 
 
Crl.Org.P.No.89/11 etc.  
68
88. 
 
Saifullah Phulpoto was again promoted as Deputy Director 
Anti-Corruption on 19.03.2013 without completion of five years in B.S-17. 
The Notification of 19th March 2013 is reproduced herein below:- 
 
Crl.Org.P.No.89/11 etc.  
69
89. 
 
One Nisar Ahmed Brohi was initially appointed as an ASI. He 
came on deputation in Anti-Corruption police and was granted out of turn 
promotion as DSP in 2011. He was absorbed in Anti-Corruption 
Establishment on 13.12.2011 and on 22.10.2012 he was appointed as 
S.P/Deputy Director. Nisar Brohi became S.P within one year after his 
absorption as Inspector. The relevant Notification of 22nd October 2012 is 
reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
70
90. 
 
One Dhani Bux was Motor Vehicle Inspector. He came on 
deputation to Anti Corruption Establishment in 2008 and was absorbed. On 
27.04.2012 he was promoted as DSP and presently he is working as PSO. 
His case is processed for appointment as S.P in Anti-Corruption. 
Notification of 27th March 2008 is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
71
 
91. 
 
One Kamran Ali Baloch Inspector in BS-16 in Police was 
inducted in Anti-Corruption Establishment and absorbed therein. The order 
dated 8th October 2012 is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
72
92. 
 
One Ghulam Muhammad Zardari was granted out of turn 
promotion on 07.12.2012 as DSP and his file has also been processed for 
promotion as S.P. The Notification dated 7th December 2012 is reproduced 
herein below:- 
 
Crl.Org.P.No.89/11 etc.  
73
93. 
 
One Mohammad Ali Shah an officer of Ex-PCS (BS-17) 
Assistant Commissioner (Revenue) came on deputation on 3rd December 
2012 in Anti Corruption Establishment and presently he is working as DSP 
in Anti Corruption Establishment. Notification dated 3rd December 2012 is 
reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
74
94. 
 
One Ali Muzaffar Baloch, who was ASI, was granted out of 
turn promotion and was promoted as DSP. He came on deputation on 
17.08.2012 in the Anti Corruption Establishment and was absorbed. On 27th 
November 2012 he was promoted as Deputy Director/S.P. Notification dated 
27th November 2012 is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
75
95. 
 
One Zahid Hussain Shah Bukhari Inspector was appointed by 
way of transfer as Inspector in the Anti-Corruption Establishment by the 
Chairman on 15th November 2012. Notification dated 15th November 2012 is 
reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
76
 
96. 
 
One Munir Ahmed Phulpoto DSP was granted out of turn 
promotion to the rank of S.P on regular basis by the Chief Minister Sindh 
vide Notification dated 13th March 2013. The Notification of 13th March 
2013 is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
77
 
97. 
 
One Ghulam Shabir Talpur DSP was granted out of turn 
promotion to the rank of S.P on 13.03.2013. The Notification of 13.03.2013 
is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
78
98. 
 
One Mohammad Muzaffar Iqbal DSP was granted out of turn 
promotion to the rank of SP on 12th March 2013. Notification dated 
12.03.2013 is reproduced herein below:- 
 
Crl.Org.P.No.89/11 etc.  
79
99. 
 
The Services of Syed Ali Asghar Shah as SP were regularized 
w.e.f  25.01.2011 vide Notification dated 08.10.2012. The Notification dated 
08.10.2012 is reproduced as under:- 
 
Crl.Org.P.No.89/11 etc.  
80
100.  
Inspectors Imran Ahmed Siddiqui and Aijaz Hussain were 
granted out of turn promotions on the ground that “they were performing 
their duties as Pilots with the VIPs as well as VVIPs for the last 15/20 years. 
They have rendered meritorious services with high sense of responsibility 
and dedications” and they were recommended for out of turn promotion as 
under:-
 
Crl.Org.P.No.89/11 etc.  
81
 
 
 
101.  
The Promotion Committee was formed which endorsed the 
recommendations made by the S.S.P (Traffic) and both were promoted to the 
post of DSP in Police. 
 
102.  
Another application was received by this office on the subject 
of illegal appointments in the S&GAD. In the application it was alleged that 
in violation of the orders of this Court, the Chief Minister Sindh and 
Additional Secretary Services namely Suhail Ahmed Qureshi had appointed 
the following persons as Assistant Commissioners in violation of the Rules. 
 
103.  
 Muhammad Hassan was appointed on 14th March 2013. He 
was Sub-Registrar in Board of Revenue in BS-11 and was appointed as 
Assistant Commissioner in (BS-17) Ex-PCS cadre without undertaking 
competitive exams and the training prescribed for such appointment. 
Notification of his appointment is reproduced herein under:- 
 
Crl.Org.P.No.89/11 etc.  
82
104.  
Affan Aftab was appointed as Assistant Commissioner in BS-
17 in Ex-PCS Cadre and his services were placed at the disposal of 
Commissioner Hyderabad Division, Hyderabad for further attachment with 
Deputy Commissioner Shaheed Benazirabad for the field training till further 
orders vide Notification dated 6th March 2013. Notification dated 6.03.2013 
is reproduced herein under:- 
 
105.  
 Aamir Khan Jamali was appointed as Assistant Commissioner 
in BS-17 in Ex-PCS Cadre and his services were placed at the disposal of 
Crl.Org.P.No.89/11 etc.  
83
Commissioner Hyderabad Division, Hyderabad. He was attached with the 
Deputy Commissioner Hyderabad for the field training till further orders 
vide Notification dated 21st March 2013. Notification dated 21.03.2013 is 
reproduced herein under:- 
 
106.  
Mir Najeeb-ur-Rehman Jakhrani was appointed as Assistant 
Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at 
Crl.Org.P.No.89/11 etc.  
84
the disposal of Commissioner Hyderabad Division, Hyderabad for further 
attachment with Deputy Commissioner Thatta for the field training till 
further orders vide Notification dated 3rd April 2013. Notification dated 
03.04.2013 is reproduced herein under:- 
 
107.  
We have been informed that Chief Minister in excess of the 
quota under the rules nominated the following persons as Assistant 
Commissioner. According to the information provided to us there are 265 
Crl.Org.P.No.89/11 etc.  
85
sanctioned posts of Assistant Commissioners (BS-17) in Ex-PCS Cadre. 
25% (66 posts) are reserved for posting of PAC (former DMG) Officers, 
leaving behind 75% (199 posts) which are to be filled by:- 
i.   
Initial appointment  
 
 
 
50% (99 posts). 
ii. 
By promotion from amongst Mukhtiarkars 43.75% (88 posts). 
iii. 
By nomination  
 
 
 
6.25% (12 posts) 
 
 Following officers have been working in excess of prescribed quota of 
appointment by transfer/nomination:- 
 
S.No. Name of officer  
Date 
of 
appointment 
01. 
Mr.Abu Bakar Mangrio 
19.02.2007 
02. 
Syed Altaf Ali 
23.11.2007 
03. 
Mr. Nazar Hussain Shahani 
19.07.2011 
04. 
Mr. Yar Muhammad Bozdar 
30.09.2011 
05. 
Mr. Sajjad Hussain Mehar 
13.11.2012 
06. 
Mr. Danish Khan 
07.12.2012 
07. 
Mr. Nadeem-ul-Haq 
07.12.2012 
08. 
Syed Umaid Ali 
18.01.2013 
09. 
Mr. Affan Aftab  
18.01.2013 
10. 
Mr. Ammaduddin Qayyum Chachar 
13.03.2013 
11. 
Syed Mohammad Omer  
13.03.2013 
12. 
Mr. Mohammad Hassan 
14.03.2013 
13. 
Mr. Imran Ahmed Shaikh 
14.03.2013 
14. 
Mir Najeeb ur Rehman Jakhrani 
18.03.2013 
15. 
Mr. Aamir Khan Jamali 
20.03.2013 
 
108.  
According to Rule 5(4)(b) of the West Pakistan Civil Service 
(Executive Branch) Rules, 1964, 12½ percent posts of such vacancies shall 
be filled from amongst persons, who hold posts of Assistants, 
Superintendents working in Secretariat attached departments, Private 
Secretaries, Public Relations Officers to the Governor, Chief Minister and 
Ministers and Chief Secretary having done their Graduation, will be 
considered fit for appointment by transfer to the post of Assistant 
Crl.Org.P.No.89/11 etc.  
86
Commissioner (BS-17) in Ex-PCS Cadre by way of nomination. Selection 
List “B” and “C” is maintained in accordance with clause (b) quota and 
clause (c) of Sub Rule (5) of this Rule. 
109.  
Against the share/quota of 12 posts, the Chief Minister has 
nominated by transfer 15 persons, after exhausting the prescribed quota. The 
complaints made by the applicants also mention the names of such persons 
reproduced hereinabove.  
S.No. Name of officer  
Date 
of 
appointment 
01. 
Mr. Karamuddin Panhyar 
13.08.1997 
02. 
Mr. Attaullah 
14.02.2006 
03. 
Mr. Nazir Ahmed Soomro 
14.02.2006 
04. 
Mr. Arshad Waris 
13.03.2006  
05. 
Mr. Waseemuddin 
21.03.2006 
06. 
Mr. Maqsood Hussain Ghummro 
21.03.2006 
07. 
Mr. Shujat Hussain  
21.03.2006 
08. 
Mr. Muhammad Khan Rind 
12.05.2006 
09. 
Mr. Shaikh Mohammad Rafique 
20.05.2006 
10. 
Dr. Muhammad Rafique Sahito 
30.05.2006 
11. 
Mr. Abdul Fahim Khan 
12.09.2006 
12. 
Dr. Ali Nawaz Bhoot 
14.09.2006 
 
110.  
We may observe that nominations of Assistant Commissioners 
by the Chief Minister after exhausting his quota shall affect the seniority of 
the incumbents who will pass the P.C.S exams on merits and appointed as 
Assistant Commissioners till 2017. Therefore, all the aforesaid officers 
inducted in excess of the quota shall relegate to their original positions. In 
future, the Sindh Government shall formulate mechanism for nomination of 
such appointments by transfer to the post of Assistant Commissioner (BS-
17) in Ex.PCS cadre.  
 
111.   
The applicants in the aforesaid applications have raised 
individual grievances, inter alia, on the ground that powers conferred on the 
Crl.Org.P.No.89/11 etc.  
87
Chief Minister/ Sindh Government by virtue of the impugned legislative 
instruments had affected their rights under the service law and the 
Constitution. We refrain from commenting upon the complaints made by the 
applicants and the material placed before us. We will also not like to 
comment on the exercise of powers of the Chief Minister in the individual 
cases.  
 
112.  
We have heard learned counsel as well as learned Advocate 
General Sindh/ Additional Advocate General Sindh and have perused their 
written arguments. Before addressing the issue of ‘absorption’, ‘deputation’, 
‘out of turn promotion’, ‘re-employment’ and ‘appointments on contracts’  
in the Sindh Government, we would like to first answer the objections raised 
by the learned Advocate General Sindh, Dr. Farough Naseem, Mr. Anwar 
Mansoor Khan, Mr. Yawar Farooqui and Mr. M.M. Aqil Awan (Respondent 
No.5 in C.P. No.71/2011) on the maintainability of C.P. No.71/2011 and CP 
No.21 of 2013 by which vires of the impugned legislative instruments have 
been challenged.  
MAINTAINABILITY OF PETITIONS. 
113.  
The learned counsel named hereinabove, appearing on behalf of 
the different Respondents in the aforesaid Constitution Petitions have 
commonly objected to the maintainability of the aforesaid 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 promotion, which under the service laws are not 
construed as ‘vested right’ of a Civil Servant. Their next argument was that 
Crl.Org.P.No.89/11 etc.  
88
if at all, any right of the Petitioners is impaired, they can approach the 
appropriate forum for redressal of their grievance. 
 
114.    
We have considered the arguments of the learned counsel for 
the Respondents and found them without force for more than one reason. In 
the first place, if this Court is of the view that impugned enactment is 
violative of fundamental rights guaranteed under the Constitution, it can 
examine the vires of such an enactment either on its own or on an 
application/petition filed by any party. The Petitioners have challenged the 
vires of the impugned enactments which raise questions of public 
importance relating to the rights of the Civil Servants in Sindh. This Court in 
the case of Watan Party and others vs. Federation of Pakistan and others 
(PLD 2012 S.C 292) has held that term “public importance” is one of the 
components to attract the jurisdiction of Supreme Court under Article 184(3) 
of the Constitution coupled with the facts that three elements i.e. question of 
public importance; question of enforcement of fundamental rights and 
fundamental rights sought to be enforced as conferred by Chapter-I, Part-II 
of the Constitution are required to be satisfied. In the case in hand the issues 
raised in the Petition cover parameters, which attract the jurisdiction of this 
Court under Article 184(3) of the Constitution. Moreover, this Court in the 
case of Tariq Aziz-ud-Din reported in (2010 SCMR 1301) while interpreting 
Article 184 (3) of the Constitution has held that it can examine the exercise 
of discretion of competent authority whereby it has upset the settled 
principle of service law adversely affecting upon the structure of civil 
servants. For the aforesaid reasons, we hold that these Petitions are 
maintainable under Article 184(3) of the Constitution.  
Crl.Org.P.No.89/11 etc.  
89
 
 
 
 
ABSORPTION 
 115.  
To appreciate the contentions of the parties, we intend to take 
up different issues arising out of impugned enactments one by one. We will 
first take up the issue of “absorption” of different employees regularized by 
the Sindh Government in exercise of the powers conferred upon them under 
the impugned legislations:- 
i. The Sindh Civil Servants (Regularization of Absorption) 
Ordinance, 2011 (Ordinance III of 2011). 
 
ii. The Sindh Civil Servants (Regularization of Absorption) 
Act, 2011 (Act XVII of 2011).  
 
iii. The Sindh Civil Servants (Amendment) Ordinance, 2012. 
 
iv. The 
Sindh 
Civil 
Servants 
(Second 
Amendment) 
Ordinance, 2012.  
 
v. The Sindh Civil Servants (Amendment) Act, 2013.  
 
vi. The Sindh Civil Servants (Second Amendment) Act, 
2013.  
 
116.  
From the contentions of the learned Additional Advocate 
General Sindh and the learned counsel for the parties, we can safely 
conclude that the term “absorption” has neither been defined by the Act of 
1973 nor by the Rules framed thereunder. The impugned legislative 
instruments have also failed to give any meaningful definition to the said 
term. In the impugned instruments, the Provincial Assembly has given 
unbridled powers to the Chief Minister to appoint by transfer (absorb) any 
person from any organization. The Act of 1973 is promulgated pursuant to 
Articles 240 and 242 of the Constitution, which provides mode of 
appointment in terms of Section 5. Section 26 of the Act of 1973 empowers 
Government to make Rules in order to carry out the purposes of the Act. In 
exercise of such powers the Sindh Government has framed Rules which are 
Crl.Org.P.No.89/11 etc.  
90
called Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 
1974. These Rules provide the procedure for appointment of Civil Servants 
by three modes (i) Recruitment by initial appointment, (ii) Appointment by 
promotion and (iii) Appointment by transfer. ‘Absorption’ itself is an 
appointment by transfer and could only be made under Rule 9A of the Rules 
of 1974. Under Rule 9A, if 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 (i) he possesses such qualifications as 
laid down under Rule 3(2) for appointment to such post, (ii) he shall be 
appointed to a post of equivalent or comparable scale and in case, if such 
post is not available then to a post of lower scale and (iii) his seniority shall 
be reckoned from the date of appointment in that cadre with a further rider 
that his previous service, if not pensionable, shall not be counted for pension 
and gratuity. By present impugned legislations, no mechanism has been 
provided for absorption of an employee, who is appointed by transfer 
(absorbed) from different organizations in Sindh Government. In fact those 
who did not have matching qualifications, experience and expertise were 
transferred on deputation, and absorbed against the language of parent 
statute and the Rules framed thereunder. Such absorption in absence of 
mechanism under the newly added section, on the face of it, is violative of 
the provisions of the Constitution. We during the hearing, required the 
Secretary Services to provide us the list of the Civil Servants, who are 
Crl.Org.P.No.89/11 etc.  
91
employed in the Sindh Government. He has provided copy of such list, 
which is reproduced herein under:- 
 
117.  
 According to the list, there are in all 582,746 civil servants in 
the Sindh Government. The present impugned legislation is likely to affect 
the civil servants, who are presently working in BS-11 to BS-22, which 
comes to 153745 in number. The Civil Servants under the mandate of the 
Constitution have been guaranteed the fundamental rights being citizens. 
Article 4(1) provides that all citizens are entitled to enjoy equal protection of 
law and have inalienable right to be treated in accordance with law. In this 
respect the Act of 1973 framed under the command of Articles 240 and 242 
of the Constitution provides protection to all the Civil servants by assuring 
them that the law promulgated by the Parliament and/or Provincial 
Crl.Org.P.No.89/11 etc.  
92
Assemblies will be subject to the Constitution. The phrase “subject to the 
Constitution” has been used as prefex to Article 240 which imports that 
Assemblies cannot legislate law against service structure provided in Part 
XII of Chapter 1 of the Constitution.  
 
118.  
Article 9 of the Constitution provides protection to every citizen 
of life and liberty. The term “life and liberty”, used in this Article is very 
significant as it covers all facets of human existence. The term “life” has not 
been defined in the Constitution, but it does not mean nor it can be restricted 
only to the vegetative or animal life or mere existence from conception to 
death. The inhibition against its deprivation extends to all those limbs and 
faculties by which life is enjoyed. The term “life” includes ‘reputation’ 
‘status’ and all other ancillary privileges which the law confers on the 
citizen. A civil servant is fully protected under Article 9 and cannot be 
deprived of his right of reputation and status. Under the impugned 
instruments a person, who without competing through the recruitment 
process is conferred status of a civil servant. The impugned legislation has 
amended service laws in a manner to deprive the civil servants from their 
rights to status and reputation under Article 9 of the Constitution.  
 
119.  
A civil servant, who after passing the competitive exam in 
terms of the recruitment rules, is appointed on merits, looses his right to be 
considered for promotion, when an employee from any other organization is 
absorbed under the impugned legislative instruments, without competing or 
undertaking competitive process with the backdated seniority and is 
conferred the status of a civil servant in complete disregard of recruitment 
rules. Under the impugned enactments, it is the sole discretion of the Chief 
Crl.Org.P.No.89/11 etc.  
93
Minister to absorb any employee serving in any other organization in 
Pakistan to any cadre in the Sindh Government. The discretion of the Chief 
Minister to absorb any employee from any part of Pakistan to any cadre with 
backdated seniority directly affects the fundamental rights of all the civil 
servants in Sindh being violative of the Article 4 which provides equal 
protection of law to every citizen to be treated in accordance with law, 
which is inalienable right of a citizen. The impugned legislative instruments 
have been promulgated to extend undue favour to few individuals for 
political consideration and are against the mandate of the Civil Servant Act 
and recruitment rules framed thereunder. The impugned instruments are 
discriminatory and pre-judicial to public interest as such enactments would 
be instrumental in affecting the Civil servants’ tenurial limitations and their 
legitimate expectancy of future advancement. The provision of absorption 
on the plain reading reveals that this provision has been promulgated to 
circumvent and obviate the very framework of the Provincial civil structure, 
as envisaged by the Constitution and law. By such impugned instruments, a 
parallel system based on discrimination and favoritism has been imposed to 
supersede the existing law, Rules and Regulations governing the important 
matters of civil servants like ‘absorption’, therefore, it can be safely held 
that the impugned instruments being discriminatory are violative of Article 
25 of the Constitution, as it is not based on intelligible differentia not 
relatable to the lawful object.  
 
120.  
The impugned Ordinance and Act of 2011 validating absorption 
by the Sindh Government are ultra vires of Articles 240 and 242 of the 
Constitution, as these instruments, in the first place, have been promulgated 
Crl.Org.P.No.89/11 etc.  
94
without amending the Act of 1973, and the rules framed there-under. 
Moreover, the impugned validation instruments are multiple legislation and 
do not provide mechanism by which absorption of different employees took 
place in complete disregard of the parent statute and the rules framed there-
under. By these impugned validating instruments restriction placed by 
Articles 240 and 242 of the Constitution has been done away. The validating 
instruments allowed absorption of a non Civil Servant conferring on him 
status of a Civil Servant and likewise absorption of a Civil Servant from non 
cadre post to cadre post without undertaking the competitive process under 
the recruitment rules. We may further observe that the Provincial Assembly 
can promulgate law relating to service matters pursuant to the parameters 
defined under Articles 240 and 242 of the Constitution read with Act of 
1973 but, in no way, the Provincial Assembly can introduce any validation 
Act in the nature of multiple or parallel legislation on the subject of service 
law.  
 
121.    
By the impugned legislations ‘absorption’ of an employee in 
ex-cadre group would deprive the seniority and progression of career of 
meritorious civil servants. A substantial number of unfit and unmeritorious 
officers and beneficiaries have been absorbed in the important groups, 
services, positions with the help of authorities and such legislations allow 
this to continue. The absorption, by way of impugned instruments, would 
practically cause removal of constitutional and legal differentiations that 
exist between various cadres, posts and services. Moreover, the culture of 
patronage will intensify the activity of bringing more politicization, 
inefficiency and corruption in the provincial services. The Civil Servants Act 
Crl.Org.P.No.89/11 etc.  
95
and Rules framed provide transparency in appointments, which would 
disappear and the employees who could not get in service through 
competitive process may also be obliged to look for a political mentor 
instead of relying on merits in order to protect their careers. We may also 
observe here that the absorption under the aforesaid impugned instruments is 
not only confined to non-civil servants to civil servants but through these 
impugned instruments non-civil servants, who were serving on non-cadre 
posts, have been transferred and absorbed to cadre posts, the pre-requisite of 
which is competitive process through Public Service Commission or by 
other mode provided in the relevant recruitment rules. Law of such nature 
which is violative of the recruitment rules will encourage corruption and bad 
governance and the public at large will loose confidence in the officials who 
are being absorbed under the garb of the aforesaid impugned instruments.   
 
122.  
In the case of Syed Mahmood Akhtar Naqvi and others vs. 
Federation of Pakistan and others (PLD 2013 S.C 195), this Court while 
interpreting the guarantees extended to civil servants, has observed in Para-
10 as under:- 
“10. It is worth noting that the Constitution of 1956 and 1962 
contained chapters outlining certain safeguards for the civil 
services. In the 1973 Constitution, the framers omitted a similar 
chapter from the Constitution and shifted the onus to ordinary 
legislation. The Law Minister at the time, who was steering the 
Constitution Bill informed the Constituent Assembly that in the 
past, constitutional protection for civil servants had been 
granted “because those who served came from outside and they 
needed these protections in respect of service”. However, since 
now “this country [was] being run by the leaders of the 
people” such protections were no more deemed necessary. The 
purpose of this change therefore, was to “[break] away from 
the past colonial traditions” and to emphasize the point that 
civil servants were not entitled to “any superior or higher 
status” compared to other citizens. Another reason the Law 
Minister gave was that the “Constitution is the basic document 
Crl.Org.P.No.89/11 etc.  
96
providing the fundamentals and this matter was not so 
fundamental as to be provided in the Constitution.” 
(Parliamentary Debates, 31st December, 1972 and 19th 
February, 1973). It was therefore decided that, as stated in 
Articles 240, 241 and 242 of the Constitution, the matter would 
be dealt with through statutes. Such statutes were subsequently 
passed and include the Civil Servants Act, 1973.  It may be 
emphasized that whatever else the intent behind these changes 
may have been, it could not have been meant to subjugate of 
civil servants to constantly changing political imperatives. The 
intent of the Constitution cannot but be a fuller realization of 
the goal set out in the speech of the country’s founding father 
quoted earlier : “ fearlessly, maintaining [the] high reputation, 
prestige, honour and the integrity of [the civil] service.” 
 
123.  
Though the Court interpreted the provisions of Federal Civil 
Servants Act of 1973 in the aforesaid judgment but the law and the rules 
prescribed therein are identical to the language of the Act of 1973 with 
minor exceptions. We therefore, can safely hold that the impugned 
instruments empowering validation to the absorbees and appointment by 
transfer (absorption) of non-civil servant to a cadre post in Sindh 
Government are contrary to the parameters guaranteed by the Constitution 
under Articles 240 and 242 and absorptions in such manner to extend 
favours to unmeritorious employees by the Sindh Government. Such 
absorption has led to the burnt of increasing lawlessness and violence on one 
hand and on the other hand meritorious officers despite discharging their 
duties with utmost dedication and professional excellence are affected with a 
griping sense of insecurity in respect of their future prospects in careers.    
 
124.  
We have also noticed the absorption of employees from 
different departments/organizations in the Sindh Police through the 
impugned legislation and the material placed before us reflects that almost 
all of them have been absorbed for political considerations. The senior 
Crl.Org.P.No.89/11 etc.  
97
police officers in the rank of D.I.G, SSP, SP, DSP etc., without undergoing 
the mandatory police training, are posted in field particularly in Karachi, 
which has resulted in deteriorating law and order situation in Sindh specially 
in Karachi owing to their lack of competence. This Court in the case of 
Watan Party and another vs. Federation of Pakistan and others (PLD 2011 
S.C 997) popularly known as “Karachi Law & Order case”, has noticed this 
situation and observed as under:- 
“31. 
It seems that the police primarily being responsible to 
enforce law and order has no intention to deliver. Either they are 
scared or they are dishonest or absolutely lack the requisite skills. 
It could be that in the year 1992 operation clean up was launched 
against MQM wherein statedly, the police had played an active 
role, but subsequently, 92 police officers/officials disappeared and 
up till now there is no clue of their whereabouts nor is it known 
that by whom, and under whose patronage, such persons were 
abducted and/or killed. Another reason appears to be that police 
force has been highly politicized, recruitments have been made in 
political consideration. It came to light during hearing of the case 
that in police force many police officers have been recruited on 
political considerations who have managed to occupy such posts 
for extraneous considerations and senior officers in the rank of 
SSP, SP and DSP etc. have been inducted into the force from other 
organizations without following any rules and even they have not 
undergone training for the purpose of policing. To highlight this 
aspect, following information has been obtained from the Advocate 
General, Sindh: - 
 
1. 
Mr. Dost Ali Baloch from Intelligence Bureau, absorbed in Sindh 
Police with effect from 14-10-1998, presently working as Director 
General Finance, CPO Sindh Karachi (BS-20). 
 
2. 
Mr. Muhammad Malik from FIA, absorbed in Sindh Police with 
effect from 31-10-2007, presently working as Director General 
Traffic, Planning & Regulation, Sindh Karachi (BS-20). 
 
3. 
Mr. Muhammad Riaz Soomro from Anti-Narcotic Force, absorbed 
in Sindh Police with effect from 26-02-2008, presently working as 
SSP, District Mirpurkhas (BS-19). 
 
4. 
Mr. Muhammad Ali Baloch appointed as Assistant Director 
(Computer) in Sindh Police on 6-4-1999, presently working as 
SSP, District Tando Muhammad Khan (BS-19). 
 
Crl.Org.P.No.89/11 etc.  
98
5. 
Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh Police with 
effect from 16-7-2003, presently working as SSP District Matiari 
(BS-19). 
 
6. 
Mr. Attaullah K. Chandio, from Solicitor Department, absorbed in 
Sindh Police with effect from 1-6-1995, presently working as SP, 
Special Branch, Mirpurkhas (BS-18). 
 
7. 
Mr. Shahid Hussain Mahesar on deputation from Intelligence 
Bureau with effect from 26-7-2009, presently working as SSP 
Political (SB) Karachi (BS-18). 
 
8. 
Mr. Zameer Ahmed Abbasi on deputation from National 
Accountability Bureau with effect from 31-12-2008, presently 
working as SDPO/Frere, District South, Karachi Range (BS-17). 
 
9. 
Mr. Shiraz Asghar Shaikh, on deputation from PEMRA with effect 
from 23-8-2008, presently working as SDPO/Darakhshan, District 
South, Karachi Range (BS-17). 
 
10. 
Mr. Faisal Mukhtar Vakaasi on deputation from National 
Accountability Bureau with effect from 31-3-2009, presently 
working as Principal, Training & Recruitment, Karachi Range 
(BS-17). 
 
11. 
Mr. I.D. Mangi, on deputation from ACE, Sindh with effect from 
10-4-2009, presently working as DSP/ACLC, Karachi Range (BS-
17). 
 
12. 
Major (R) Khurram Gulzar, re-employed on contract basis as 
DIGP (BS-20) for a period of one year with effect from 27-12-2010. 
 
13. 
Col. (R) M.A. Wahid Khan, re-employed as Principal, S.B.B. EPT 
Razzakabad, Karachi (BS-19) for a period of one year with effect from 
1-9-2008. Extension granted for two years with effect from 1-9-2009. 
 
14. 
Major Col. (R) Muhammad Ahsan Umar, re-employed as SSP, 
District East, Karachi Range (BS-19) for a period of two years 
with effect from 24-9-2010. 
 
 
125.  
The impugned legislation on absorption is persons/class 
specific as it extends favours to specific persons infringing the rights 
guaranteed to all the civil servants under the service structure provided under 
Articles 240 and 242 of the Constitution. This Court in the case of Baz 
Muhammad Kakar and others vs. Federation of Pakistan and others (PLD 
Crl.Org.P.No.89/11 etc.  
99
2012 S.C 870) has held that the legislature cannot promulgate laws which 
are person/class specific as such legislation instead of promoting the 
administration of justice caused injustice in the society amongst the citizens, 
who were being governed under the Constitution. In the case in hand the 
impugned legislation, prima facie, has been made to protect, promote and 
select specific persons who are close to centre of power, and has altered the 
terms and conditions of service of the civil servants to their disadvantage in 
violation of Article 25 of the Constitution.   
 
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. 
 
(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.  
Crl.Org.P.No.89/11 etc.  
100 
 
(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.    
      
DEPUTATION 
127.   
The issue of ‘deputation’ has created lot of unrest amongst the 
Civil Servants. From the arguments of the learned counsel and the material 
produced before us, we are of the considered view that the term 
“deputation” has not been provided under any civil service law and this 
term has been borrowed from Esta Code 2009 Edition Chapter-III at page 
385. Part-II at Page 426 of the Esta Code which deals with the issue of 
deputation and serial No.29, which defines “deputation”, is reproduced 
herein below:- 
“Hither-to the term ‘deputation’ has not been formally defined. 
However, according to the practice in vogue a Government 
servant begins to be regarded as a “deputationist” when he is 
appointed or transferred, through the process of selection, to a 
post in a department or service altogether different from the 
one to which he permanently belongs, he continues to be placed 
in this category so long as he holds the new post in an 
officiating or a temporary capacity but ceases to be regarded 
as such either on confirmation in the new post or on reversion 
to his substantive post.” 
 
128.         
In the case of Muhammad Arshad Sultan and another vs. Prime 
Minister of Pakistan, Islamabad and others (PLD 1996 SC 771) at page 777, 
this Court has defined “deputation” in the following terms:- 
“Deputationist’ to be a Government servant who is appointed 
or transferred through the process of selection to a post in a 
department or service altogether different from the one to 
which he permanently belongs. Such a Government servant 
continues to enjoy this status so long as he holds the new post 
Crl.Org.P.No.89/11 etc.  
101 
in an officiating or a temporary capacity but ceases to be 
regarded as such either on confirmation in the new post or on 
reversion 
to 
his 
substantive 
post. 
The 
departmental 
interpretation referred to by the said Tribunal as having the 
effect of statutory rule has still being retained, as is evident 
from the ESTACODE (1983 Edition) in Chapter III, Part II at 
page 217. This Court has also accepted the aforesaid definition 
of the term ‘deputation’ in Islamic Republic of Pakistan v. 
Israrul Haq and others PLD 1981 SC 531. 
 
 
129.  
From the aforesaid definition, we can safely hold that no non-
civil servant can be transferred and appointed in the Sindh Government by 
way of deputation to any cadre. The procedure provided under the Esta Code 
reproduced hereinabove has been approved by this Court in the case of 
Mohammad Arshad Sultan. The Act of 1973 or the rules framed thereunder 
does not provide mechanism to regulate appointment by transfer on 
deputation and therefore in the case of Lal Khan vs. Employee Old Age 
Benefit Institution (2010 PLC (CS) 1377), a Division Bench of Sindh High 
Court has held as under:- 
“This brings us to the conclusion that there is no legislation in 
violation of Article 240(b) of the Constitution in Sindh, to 
regulate the transfer by way of Deputation, therefore, at 
provincial Level, same view can be adopted to the effect that 
neither law permits, nor there is any provision, which can 
authorize, the transfer of non-civil servant, by way of 
Deputation.” 
 
130.   
This Court while affirming the aforesaid judgment has refused 
the leave. The Sindh Government in exercise of powers under Section 10 
read with Section 24 started appointing by transfer on deputation the 
employees of different Organizations in Sindh government, who were not 
civil servants. This act of Sindh Government has created unrest amongst the 
civil servants and as a result, a Petition was filed in the High Court of Sindh 
Crl.Org.P.No.89/11 etc.  
102 
at Hyderabad by Syed Imtiaz Ali Shah, which was allowed in the following 
terms:-  
“6. 
We feel that approach of the Sindh Government is not 
complying with the directives contained in the judgment was ex-
facie contemptuous. At the request of Secretary Services we 
found it appropriate to decide this issue of transfer of the civil 
servants by the government authority in detail under section 10 
of the Civil Servants Act 1973 besides the power of the 
competent authority to appoint them on deputation in the 
province. In the first place the aforesaid judgment of this Court 
fully covers this issue but in order to remove wrong impression 
if any of the Sindh Government. The postings of the officers in 
the different departments of Sindh, list of which has been 
reproduced hereinabove would hamper the good governance on 
one side damage the department on the other hand. If such 
actions which are ex-facie outside the civil servant laws and 
rules are un-checked it would paralyze the system besides it 
would cause anger dissatisfaction and heart burning to those 
who are entitled to promotions and are otherwise eligible to 
hold the office, which is occupied by the strangers under the 
garb of deputation and or out cadre transfer and or posting 
non-cadre officers against the cadre posts. In the first place 
there is no provision either under the Sindh Civil Servant Act or 
the rules framed there under authorizing the competent 
authority to order deputation of an officer. A detailed 
discussion has been made in the judgment referred to 
hereinabove on this issue. We have examined the list of the 
officers of the federal government who were posted in different 
departments in the Sindh Government on deputation under the 
garb of exigency of services. None of them had the eligibility 
and or competence to be posted against such officer cadre post 
and when confronted the Secretary Services has conceded 
before us that the officers of the Federal Government in 
occupational group who are posted in the Sindh Government in 
different departments against cadre posts neither qualify nor 
had the eligibility to hold such post. Posting of such officers on 
deputation in Sindh would never improve the system within the 
department, as the deputationists on expiry of his deputation 
period would join his parent department. Such officer even 
otherwise is not accountable and the department in which he is 
appointed would ultimately suffer. Additionally those who are 
eligible and are likely to be promoted in the department are 
deprived of their lawful right to promotions which is a 
permanent cause of heart burning to the cadre officers. A civil 
servant who is on deputation even looses the status of civil 
servant during the period of deputation as has been held by 
Honourable Supreme Court in the case of Mazhar Ali v. 
Federation of Pakistan reported in 1992 SCMR 435 which by 
itself is sufficient ground to discourage the posting of the 
Crl.Org.P.No.89/11 etc.  
103 
nature. Additionally Article 240 of the Constitution provides 
that appointments to and the conditions of services of a person 
could be determined by Act of the Parliament and or of the 
Provincial Assembly. In other words the terms and conditions 
of a civil servant cannot be deviated from by an Administrative/ 
Executive order which in the case in hand has been done by the 
competent authority under the garb of exigency. Such orders 
have no sanction of law.  
 
7. 
Section 10 of the Sindh Civil Servants Act also restricts 
out of cadre transfer of a civil servant. The posting and transfer 
under section 10 of the civil Servants Act authorizes the 
competent authority the transfer within the cadre and not out of 
cadre as the provisions of section 10 of the Act has to be read 
with a rider that the terms and conditions of service shall not be 
changed by such an order. The Honourable Supreme Court in 
the case of Muhammad Karim v. director Health Services 
reported 1987 SCMR 295 and Masood Ahmed v. Taj 
Muhammad Baloch reported in 1999 SCMR 755 has held that 
Section 10 does not authorize the competent authority to 
transfer a civil servant out of cadre.  
 
8. 
What we have noticed from the list of the officers who are 
either performing their duties as deputationists or have been 
posted by way of transfer to a cadre post do not have the 
required qualification nor the eligibility to hold such office. In 
law a civil servant can only be appointed against the cadre post 
if he has passed the competitive examination or his appointment 
was made through competitive process which means either he is 
a PCS Officer or PSS Officer or he is officer from APUG (All 
Pakistan Unified Grade) group. The Secretary services has 
frankly conceded that the officers from the federal government 
who are serving in the Sindh Government are neither qualified 
for the post for which they are posted on deputation in the 
Sindh government nor have expertise and or knowledge of such 
office. We have noticed that under the garb of exigencies non 
cadre officers have been posted out of cadre in different 
administrative departments in Sindh on deputation basis 
irrespective of their qualification and or eligibility having no 
relevance between their experience and past service with their 
current places of postings. The Secretary services on our 
inquiry has stated before us that there are sufficient number of 
cadre officers available for posting and if the out of cadre 
officers are retransferred and posted to their in cadre 
department there will be no vacuum at all.  
 
9. 
To improve the working of the departments we are of the 
considered view that postings of the nature should be 
discouraged and respect should be given to the law and the 
rules in order to minimize the unrest amongst the officers of the 
department who suffer and or being deprived of their lawful 
Crl.Org.P.No.89/11 etc.  
104 
right to promotion or otherwise. The postings of officers 
mentioned in the lists reproduced hereinabove are not 
inconformity of the findings of this Court given in the cases of 
Lal Khan Jatoi which findings were affirmed by the Honourable 
Supreme Court in its order referred to hereinabove.       
 
10.  
We for the aforesaid reasons direct the respondents to 
immediately take steps to withdraw all the officers (mentioned 
in the list) posted either on the basis of deputation and or on 
transfer out of their cadre and posted to different cadre posts in 
different departments of Sindh, be repatriated to their parent 
departments in the Federal Government and or to be 
transferred and posted to their own cadre and department in 
Sindh within 15 days from the date of communication of this 
order. In future the Sindh government/competent authority is 
restrained from issuing order of posting of any non-cadre 
officer against cadre posting by transfer under section 10 of the 
Civil Servant Act nor they would depute any officer from 
Occupational Group of the Federal Government or from 
autonomous except in exigency unless he meets the criteria of 
matching qualification, eligibility and experience to the 
proposed post.  
 
11.  
We are informed that some petitions have been filed by 
deputationists before the Principal seat. Neither the petitions 
nor its number nor any order of the Court has been placed 
before us. We have been informed that amongst them one 
petitioner has filed a petition before this court which was 
dismissed and on appeal before the Honourable Supreme 
Court, leave was refused. Pendency of such petitions in no way 
restricts this Bench from seeking implementation of the order of 
Honourable Supreme Court referred to hereinabove.  
 
12.………………………………………………………………………. 
 
13………………………………………………………………………. 
 
14. 
This petition is allowed in the above terms with the 
aforesaid directions with the listed application. 
 
 
 
131.  
The Petition for leave to appeal was filed by some of the 
deputationists, in which leave was refused with the following observations 
affirming the judgment of the Sindh High Court:- 
“4. 
We have heard learned counsel for the petitioners in CP 
No.802-K of 2010 and we have examined the material made 
available before us. The petitioners appear to have grievance 
against directions in para No.10 of impugned judgment so far 
Crl.Org.P.No.89/11 etc.  
105 
as it relates to their repatriation or relieving them from their 
deputation. The main contention raised by their learned counsel 
was that the unexpired period of deputation could not be 
cancelled/withdrawn and the petitioners were ordered to be 
relieved and repatriated to their departments without providing 
them an opportunity of hearing. When confronted whether the 
petitioners enjoy any vested right as deputationist or otherwise 
to hold any particular post for all times to come, he admitted 
that no such right inhered in the petitioners. He, however, 
contended that in the impugned judgment there were some 
observations to the detriment of the petitioners which need to 
be deleted particularly, when the same have been made without 
providing an opportunity of hearing to them. 
 
5. 
It is well settled that a deputationist does not have any 
vested right to remain on the post as deputationists for ever or 
for a stipulated period. He can be repatriated to the parent 
department at any time. In this reference may be made to the 
case of Shafiur Rehman Afridi v. CDA (2010 SCMR 378). As 
regards the question of contention of the petitioners that they 
were not provided an opportunity of hearing before passing the 
impugned judgment, it may be stated that there is no cavil with 
the proposition that the principle of audi alteram partem (hear 
the other side; hear both sides; no man to be condemned 
unheard) has always been considered to be embedded in the 
statute even if there is no specific or express provision because 
no adverse action can be taken against any one yet, at the same 
time this principle could not be treated to be of universal nature 
because before invoking/applying this principle one has to 
specify that as against action contemplated, prima-facie, he has 
a vested right to defend the action. Equally, in cases where the 
claimant has no entitlement in his favour he would not be 
entitled to the principle of natural justice. In this reference may 
be made to the case of Justice Khurshid Anwar Bhindar v. 
Federation of Pakistan (PLD 2010 SC 483). In the instant case, 
as noted hereinabove, learned counsel for petitioners could 
bring nothing to our notice that the petitioners have any vested 
right to remain on a post as a deputationist or otherwise and 
that they cannot be repatriated/relieved at any time. Thus, the 
petitioners cannot claim the protection of the cited principle. 
Besides repatriation of the petitioners, if any, shall, in this case, 
be as a fall out of the judgment impugned herein which cannot 
be questioned individually. Be that as it may, learned Judges of 
Division Bench have taken note of unrest of officers of 
concerned departments who are deprived of their lawful rights 
to promotion on account of such kind of postings causing heart 
burning to the cadre officers besides the over all effect on the 
system within departments etc. and in this they have pertinently 
observed:  
 
Crl.Org.P.No.89/11 etc.  
106 
“To improve the working of the departments we 
are of the considered view that postings of the 
nature should be discouraged and respect should 
be given to the law and the rules in order to 
minimize the unrest amongst the officers of the 
department who suffer and or being deprived of 
their lawful right to promotion or otherwise. The 
postings of officers mentioned in the lists 
reproduced hereinabove are not inconformity of 
the findings of this Court given in the cases of Lal 
Khan Jatoi which findings were affirmed by the 
Honourable Supreme Court in its order referred to 
hereinabove.” 
 
As regards contention of learned counsel for petitioners, to the 
effect that some observations to the detriment against the 
employees/petitioners have been made, it may be stated that no 
adverse remarks seem to have been made specifically against 
the petitioners some of whom even do not appear in the list of 
officers reproduced in the impugned judgment so as the same 
be kept in their service record in their respective departments. 
6. 
Considering the case of the petitioners in the above 
petition, in the above perspective, we find no merit in the 
petition which is dismissed accordingly. Leave refused. 
 
C.P.No.4-K of 2011 
 
Through C.M.A.No.82 of 2011 Mr. K.A.Wahab, AOR for the 
petitioner has sought permission to withdraw this petition. 
Order accordingly. CPLA No.4-K of 2011 is dismissed as 
withdrawn.” 
 
132.  
The procedure provided under the Esta Code requires that a 
person who is transferred and appointed on deputation must be a government 
servant and such transfer should be made through the process of selection. 
The borrowing Government has to establish the exigency in the first place 
and then the person who is being transferred/placed on deputation in 
Government must have matching qualifications, expertise in the field with 
required experience. In absence of these conditions, the Government cannot 
appoint anyone by transfer on deputation. The Sindh Government has 
conceded before this Court that the deputationists did not have the matching 
qualifications to the cadre in which they were working on deputation and 
Crl.Org.P.No.89/11 etc.  
107 
were ordered to be repatriated. Instead of repatriation, the Sindh 
Government absorbed them by the impugned instruments granting them 
backdated seniority as well. Some of the civil servants serving in their parent 
department on non-cadre posts were transferred and absorbed to the cadre 
posts against the language of Section 10 of the Act of 1973 on the basis of 
the impugned enactments. We are conscious of the definition given under 
Section 2(1)(b)(i) of the Act of 1973 reproduced here under:- 
“2(1)(b) “civil servant” means a person who is a member of a 
civil service of the Province or holds a civil post in connection 
with the affairs of the Province, but does not include-- 
 
(i) a person who is on deputation to the Province from the 
Federation or any other Province or authority or, 
 
(ii)………………………………………………………………………. 
 
(iii)……………………………………………………………………..  
 
133.  
The aforesaid sub-section specifically mentions that a person on 
deputation will loose the status of a civil servant. The word “authority” used 
under this sub-section does not authorize the Sindh Government to transfer 
and appoint on deputation any person who is not a civil servant within the 
definition given under the Sindh Civil Servants Act, 1973 and or 
Government Servant as mentioned under the Esta Code. In order to 
harmonize Section 2(1)(b)(i) and bring it in conformity with the language of 
Esta Code, should be read as under:- 
“2(1)(b) “civil servant” means a person who is a member of a 
civil service of the Province or holds a civil post in connection 
with the affairs of the Province, but does not include-- 
 
(i) a person who is on deputation to the Province from the 
Federation or (to)  any other Province or (to)  authority or, 
 
(ii)………………………………………………………………………. 
 
(iii)……………………………………………………………………..  
Crl.Org.P.No.89/11 etc.  
108 
 
The aforesaid word ‘to’ shall bring an end to the controversy on deputation 
besides it will be in conformity with the civil service structure and the Esta 
Code. 
 
134.   
The Provincial Assembly through the impugned instruments 
pronounced a legislative judgment with the sole object to accommodate their 
blue-eyed, who were neither civil servants nor Government servants. The 
deputationists brought in were not recruited through the process of the 
competitive exams and were appointed on deputation to the cadre posts, 
which appointments affected the rights of the civil servants serving in the 
different Government departments, as their promotions were blocked. 
 
135.  
Through the impugned instruments, definition of Civil Servant 
has been widened by including non-civil servants employed in the different 
organizations having different service rules regulating their terms and 
conditions of service. The interpretation of Section 2(1) (b) of the Act of 
1973 does not confer powers on the Sindh Government to grant status of 
civil servant to an employee of an autonomous body and non-civil servant 
nor does it authorize under the scheme of the Constitution to transfer on 
deputation a civil servant from non-cadre post to a cadre post. In the case of 
Muhammad Mubeen-us-Salam reported in (PLD 2006 SC 602), this Court 
while examining the vires of Section 2-A of the Service Tribunals Act 1973 
declared it ultra vires of the Articles 240 and 260 of the Constitution to the 
extent of category of employees, whose terms and conditions of service were 
not regulated by the Federal legislature and by deeming clause, they were 
conferred the status of Civil Servants as defined under Section 2(1) (b) of the 
Crl.Org.P.No.89/11 etc.  
109 
Act of 1973. The present impugned legislation has conferred the status of a 
civil servant to a deputationist, who is an employee of an Organization 
having distinct service rules. The term “deputationist” as has been 
interpreted by this Court clearly draws line between the Government servant 
and a non-civil servant.  
 
 136.   
The transfer by appointing on deputation of an employee 
having no matching qualifications has created sense of insecurity which 
multiplied the concern of the civil servants when these deputationists were 
absorbed under the impugned legislative instruments. It is a misconception 
that by an amendment in the parent statute, the definition of ‘civil servant’ 
can be enlarged as has been done through the impugned legislations. By a 
deeming clause as introduced under the impugned legislation, an employee 
holding a post under any authority or corporation, body or organization 
established by or under any Provincial or Federal law or which is owned or 
controlled by Federal or Provincial Government or in which Federal 
Government or Provincial Government has controlling share or interest 
could not be conferred status of a civil servant. The law does not confer such 
powers upon a Provincial Assembly to change the structure of service law in 
conflict with the provisions of Article 240(b) or Article 242(1B).  
 
137.  
The concept of power under our Constitution is distinct from 
other constitutions of common law countries. Under the Constitution of 
Pakistan, the sovereignty vests in Allah and it is to be exercised by “the 
people within the limits prescribed by Him”, as a sacred trust. The 
Authorities in Pakistan while exercising powers must keep in mind that it is 
not their prerogative but a trust reposed in them by the Almighty Allah and 
Crl.Org.P.No.89/11 etc.  
110 
the Constitution. The impugned legislation is promulgated to benefit patent 
class of persons specific and violative of Article 25 of the Constitution as it 
is not based on intelligible differentia not relatable to the lawful object. The 
impugned legislation on deputation is violative of the service structure 
guaranteed under Article 240 and 242 of the Constitution which provides 
mechanism for appointments of Civil Servants and their terms and 
conditions as envisaged under Act of 1973 and the Rules of 1974 framed 
thereunder. The object of the Act of 1973 is to maintain transparency in 
appointments, postings and 
transfers of Civil 
Servants, whereas 
deputationists who otherwise are transferred and appointed by the Sindh 
Government under the impugned instruments have destroyed the service 
structure in Sindh and has blocked the promotions of the meritorious civil 
servants in violation of the fundamental rights guaranteed to them under 
Articles 4, 8, 9, 25, 240 and 242 of the Constitution, as discussed 
hereinabove and are liable to be struck down.  
RE-EMPLOYMENT 
 
138.   
Dr. Farough Naseem, Mr. Anwar Mansoor Khan and Mr. 
Yawar Farooqui did not address the Court on this issue. 
 
138.  
Through the impugned Ordinance No.VI of 2012 and Act XIV 
of 2013, the Sindh Government, by virtue of the amendment in Section 14 
was given power to re-employ a retired civil servants. The provisions of un-
amended section 14(1) and (2) were interpreted by this Court and the 
amended sub-section (3) was 
introduced to defeat 
the judicial 
pronouncement with regard to induction through re-employment of retired 
officers on contract basis. The post retirement re-employment is major 
Crl.Org.P.No.89/11 etc.  
111 
problem in the smooth service of career officers in terms of promotions and 
postings instilling a sense of injustice. This Court has time and again 
recorded its displeasure and reservations to re-employment. In Human 
Rights Cases No. 57701-P of 2010 and others reported as (PLD 2011 SC 
205), this Court has held as under:- 
“6. 
This Court is fully conscious of its duty, which has to be 
discharged under the Constitution and when it is attempted to 
hush up the corruption cases, such as one under consideration, 
the Court can pass appropriate order as it has already directed 
and it could also not be oblivious of its function to ensure that 
in the departments like the police and FIA, people, who deserve 
to be promoted on the basis of efficiency or performance etc. 
are appointed and not on contract basis. Therefore, we direct 
the Secretary, Establishment Division to furnish the list of all 
Police officers, including the Director General, FIA who have 
been appointed on contract basis and also furnish the reasons 
for the necessity and the interest of the Government for 
allowing them to continue with such posts like IG and DG, 
which are of high importance and the persons occupying these 
posts are supposed to be responsible to ensure the rule of law 
in the country. The list shall be furnished by the Secretary, 
Establishment Division by 21.1.2011. On receipt of such list, 
the office shall issue notices to all such officers to appear and 
explain as to under what authority they have been appointed on 
contract basis, and as to why notifications for their 
appointments should not be cancelled.”  
     
140.  
Un-amended Section 14 of Act of 1973 allowed re-employment 
of retired civil servants, but only in exceptional and compelling 
circumstances that too, in the public interest, whereas the impugned 
instruments has opened flood gates of re-employment for those who have 
access to Authorities. There is no scheme provided by the Sindh 
Government by amending sub-section, which authorizes the Sindh 
Government for re-employment of the retired government servants to 
regulate re-employment. The power of re-employment would adversely 
affect the terms and conditions of the civil servants, who are in service. The 
Crl.Org.P.No.89/11 etc.  
112 
impugned legislation has impinged upon the civil service tenurial limitations 
and civil servants’ legitimate expectancy of future advancement. This Court 
in the case of Mrs. Farkhanda Talat vs. Federation of Pakistan and others 
(2007 SCMR 886) has ruled out as under:- 
“is that the same hold out a guarantee to all civil servants that 
no action could ever be taken which could adversely effect 
terms and conditions of their service e.g. tenure of their 
employment; pay and grade earned by them through years of 
labour and hard work; the right to promotion including 
legitimate expectancy of future advancement in their respective 
careers; the retirement benefits such as pension, the gratuity 
and provident fund etc. and all other terms and conditions 
which were prescribed by Chapter II of the said Act of 1973 
and by other laws, rules and regulations relating to the 
subject.” 
 
 
 
141.  
The original purpose of un-amended section 14 was to provide 
stopgap arrangement allowing the Government to recruit the officer having 
matching qualifications by the modes provided under the recruitment rules. 
Presently we have been informed that the retired officers of the Government 
are serving on cadre posts for years together. The Sindh Government is 
allowing retired servant to continue as Secretaries on the misconception that 
such persons have expertise on subject. The Secretary of a department under 
the Rules of Business is to play administrative role and is provided technical 
assistance by the wing within the Department. It is a cadre post and by 
allowing the re-employment of a retired civil servant for years together 
would block the promotions of the prospective officers who have gained 
sufficient experience by passage of time by serving in the Government.  
 
142.   
Likewise re-employment itself negates the mandate of the 
provisions of Act of 1973 and the rules framed thereunder inasmuch as a 
retired officer re-employed is not governed by the rules regulating the terms 
Crl.Org.P.No.89/11 etc.  
113 
and conditions of civil servants instead by the terms of contract under which 
he is re-employed. 
 
143.  
Issue of re-employment also came under discussion before the 
larger Bench of this Court in Suo Moto Case No.16 of 2011 and on 
22.03.2013, the larger Bench while dealing with the issues has observed that 
re-employment of a person on his retirement must be made in public interest 
because re-employment against sanctioned post is likely to affect the interest 
of junior officers, who are waiting for promotion to the next higher ranks 
and their rights of promotion are blocked. Likewise, the officer whose right 
is matured for promotion has to wait till such time that the re-employed 
completes his contract. In the intervening period the officer has to face 
difficulties in maintaining his seniority. It is settled principle of law that if 
the right of promotion is not blocked by re-employment then such powers 
can be exercised, then too in exceptional cases for a definite period.  
 
144.  
We, therefore, hold that re-employment of such a nature as 
proposed under the amended sub-section (3) of Section 14 is violative of the 
provisions of Act of 1973 and rules framed thereunder, besides it violates the 
fundamental rights of the serving civil servants, who on account of such re-
hiring on contract are deprived of their legitimate expectancy of promotion 
to a higher cadre, which is violative of the provisions of Articles 4, 9 and 25 
of the Constitution.   
OUT OF TURN PROMOTIONS 
145.  
Dr. Farough Naseem, M/s Anwar Mansoor Khan and Yawar 
Farooqui did not make any contention on the issue of out of turn promotions, 
however, written synopsis were filed by the Advocate General Sindh and 
Crl.Org.P.No.89/11 etc.  
114 
Mr. M.M.Aqil Awan. In addition to the written synopsis filed by Mr. M.M. 
Aqil Awan, he also made oral submissions in which he submits that no 
mechanism has been provided under the impugned legislation for out of turn 
promotions.  
 
 146.  
We have considered the arguments of the learned counsel and 
have perused the record. By the Ordinance dated 22nd January 2002, the 
Governor of Sindh amended Act of 1973 by inserting sub-section 9A, 
empowering the competent authority to grant out of turn promotions or 
award or reward in such manner as may be prescribed to a civil servant, who 
provenly exhibits the act of gallantry while performing his duties or very 
exceptional performance beyond the call of duty. It was further provided 
under the Ordinance that the aforesaid out of turn promotions or 
award/reward will be conferred in the manner prescribed. The term 
‘prescribed’ is defined under Section 2(1)(g) of the Act of 1973 and means 
“prescribed by Rules”. This Ordinance of 2002 was protected by Article 
270AA made under 17th amendment of the Constitution.   
 
147.  
In this background the Government framed and added Rule 8-B 
in the Rules of 1974 notified on 10.02.2005. On 11.05.2005 Rule 8-B was 
omitted. 
 
148.  
The Ordinance III of 2008 was issued by which Section 9-A 
was omitted. However, this Ordinance was not placed before Assembly as a 
result of which, it lapsed after 90 days and Section 9A which was introduced 
pursuant to the Ordinance 2002 stood revived in view of judgments of this 
Court in the case of Sabir Shah (PLD 1995 SC 66), Federation of Pakistan 
Crl.Org.P.No.89/11 etc.  
115 
vs. M. Nawaz Khokhar (PLD 2000 SC 26) and Air League P.I.A.C 
Employees vs. Federation of Pakistan (2011 SCMR 1524).  
 
149.  
On 31.03.2009, the Sindh High Court vide its judgment in 
C.P.No.D-1595/2005 challenging out of turn promotions of different police 
officers directed the Sindh Government to revive Rule 8-B and the 
Committee constituted therein shall examine the case of each police officer. 
On 29.05.2009, the amendment was brought in the Rules of 1974 and Rule 
8-B was revived. However, the directives contained in the judgment of the 
Sindh High Court were never complied with instead, out of turn promotions 
were not only being granted to the police officers, but this concession was 
also extended to civil servants, who were not members of police force. 
Through the impugned legislation, section 9A was further amended in the 
manner that it omitted the term ‘prescribed’. In other words, the power of 
the Committee under the rule to examine and recommend a case of ‘out of 
turn promotion’ was done away. Through impugned legislation Sections 23-
A and 23-B in the Act of 1973 were further amended by Ordinance VI of 
2012 and Ordinance XVII of 2012. The impugned legislation by Ordinance 
and by impugned Acts of 2013, all the out of turn promotions made 
immediately before the commencement of the impugned Acts were 
regularized from the date of such promotions which means that the 
beneficiaries of out of turn promotions were further conferred the backdated 
seniority from the date of their promotion.  
 
150.  
On the issue of ‘out of turn promotion’ a Division Bench of this 
Court in its judgment in the case of Capt. (Retd) Abdul Qayyum Executive 
Engineer vs. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184) 
Crl.Org.P.No.89/11 etc.  
116 
has held that “Competent Authority was empowered to grant out of turn 
promotion.” However, this view was reviewed by this Court in the judgment 
of Muhammad Nadeem Arif and others vs. Inspector General of Police 
Punjab, Lahore and others (2010 PLC (C.S) 924), where Full Bench of this 
Court has concluded that out of turn promotions is violative of Articles 9 and 
25 of the Constitution. The relevant finding on the out of turn promotions is 
given in the aforesaid judgment, reads as under:- 
“Out of turn promotion, as envisaged in the impugned 
instruction, is not only against Constitution but also against 
Injunctions of Islam. Out of turn promotion in a public 
department generates frustration and thereby diminishes the 
spirit of public service. It generates undue preference in a 
public service. Element of reward and award is good to install 
the spirit of service of community but it should not be made 
basis of accelerated promotion.”     
 
151.         
After the aforesaid judgment of this Court, the Punjab 
Government deleted the provision by which out of turn promotions were 
granted to the civil servants. The view propounded by this Court in the case 
of Muhammad Nadeem Arif, was endorsed by this Court in another 
judgment dated 02.03.2011 in C.P.No.657-K/2010, of which one of us 
(Amir Hani Muslim,J) was a member, and reported as Ghulam Shabbir vs. 
Muhammad Munir Abbasi and others (2011 PLC (C.S) 763, where this 
Court has held that out of turn promotion was not only against the 
Constitution, but against the Injunctions of Islam. Reward or award should 
be encouraged for meritorious public service but should not be made basis 
for out of turn promotion. 
 
152.  
Additionally we have noticed that Sections 23-A and 23-B were 
inserted by amending the Act of 1973 by Ordinance XXXV of 2002 on 
Crl.Org.P.No.89/11 etc.  
117 
12.10.2002. By impugned instruments, Sections 23-A and 23-B were 
introduced without substituting the previous Sections 23-A and 23-B, which 
shows unwarranted haste on the part of the legislatures.  
 
153.  
On 
examining 
the 
language 
of 
impugned 
legislative 
instruments, we are of the view that Section 9A of the Act of 1973, 
introduced by the Ordinance in 2002 is largely a police specific class, which 
caters regularization of out of turn promotions made under Section 9A of the 
Act. In the past this section 9A has caused heart burning and ill will amongst 
the police officers both at individual and collective levels as it vested 
excessive and abusive discretionary powers in the Provincial Authorities to 
indulge in favoritism and gross nepotism, which is another germinated 
culture of patronage and politicization in the Sindh police. 
 
154.  
Indeed out of turn promotion has become a vehicle of 
accelerated progression for a large number of favorite officers using various 
measures and means. A large number of favorite police officers were 
conferred out of turn promotions under Section 9A of the Act of 1973. This 
Court repeatedly disapproved the culture of patronage creeping in the Sindh 
police by abuse of authority which has gravely eroded efficiency, morale 
and image of the police officers. In the recent order of this Court in the case 
of Suo Moto No.16/2011, this Court has observed as under:- 
“It is also a hard fact that the police has been politicized by out 
of turn promotions and inductions from other departments time 
and again, through lateral entries which has brought unrest 
amongst the deserving police officers waiting their promotions 
on merits. The posting and transfers of the police officers also 
lack merits. The complete service record of a police personnel 
which could reflect posting and transfer is not maintained by 
the relevant wing. Even many police officers posted within the 
Karachi on senior positions lack qualifications and competence 
Crl.Org.P.No.89/11 etc.  
118 
both……If this is the state of affairs, how can there be peace in 
Karachi. It seems instead of depoliticizing police force further 
damage has been caused by the government by introducing 
their blue eyed persons in police force through lateral entries 
and then granting them retrospective seniority and out of turn 
promotions.” 
 
155.  
In the case of Watan Party and another vs. Federation of 
Pakistan and others (PLD 2011 S.C 997), this Court has made observations 
with the directions that “further observe that to come out of instant grave 
situation of law and order in Karachi, police force being principal law 
enforcing agency has to be de-politicized and strengthened so that they 
could, with full commitment, dedication, zeal and zest perform its bounden 
duty, and unless there is a de-politicized police, the situation of law and 
order is likely to become more aggravated, no sooner the assistance of 
Rangers is withdrawn.”     
 
156.  
However, instead of effecting reforms, the Authorities have 
resorted to employing legislative means to impose executive will, which has 
nurtured a culture of patronage protecting interest of influential group of 
blue-eyed persons. By the impugned legislative instruments unbridled 
discretionary powers were conferred on the Authorities to protect culture of 
favoritism and nepotism that has prevailed for many years particularly in 
Sindh Police if not other services. That last impugned legislative instrument 
which is Act XXIV of 2013 was passed hours before the Provincial 
Government was to complete its term and without much debate or discussion 
in the Assembly which signifies the haste to protect specific class of 
officials/individuals by regularizing their ex-cadre and out of turn 
promotions, which have deprived the rights of other meritorious and 
Crl.Org.P.No.89/11 etc.  
119 
deserving civil servants/officers. Through the impugned legislation under the 
grab of “act of gallantry” or “very exceptional performance beyond the call 
of duty”, the Chief Minister was vested with unrestrained power to grant out 
of turn promotion to any civil servant, whom he deemed fit and also to 
indemnify the existing beneficiaries of the said, or similar earlier provisions, 
regardless of merit or justification of being so rewarded. This section 9A 
benefits particular class of officials on seemingly political and other 
impermissible grounds. By the impugned legislation retrospective seniorities 
were given to a large number of influential officers causing injustice to the 
meritorious and deserving civil servants. Section 9A through the impugned 
Acts has extended protection to the selected beneficiaries, which is bound to 
generate rancor and disaffection amongst the civil servants/ police officers, 
who were appointed through competitive process and their seniority and 
smooth progress in career stands seriously abridged. 
 
157.  
Unfortunately, the impugned Acts have bypassed the stipulation 
of Rule 8-B and provided a blanket cover to all out of turn promotions even 
to those which have been contested in the Courts for being granted in gross 
violation of rules and infringing the seniority of many deserving officers.  
 
158.  
On the issue of out of turn promotions, the impugned 
enactments are discriminatory persons/class specific and pre-judicial to 
public interest, as it would be instrumental in causing heart burning amongst 
the police officers whose inter-se seniority and legitimate expectation of 
attaining upper ladder of career would be affected. The out of turn 
promotions to the police officers and other civil servants by virtue of Section 
9A would affect the performance of hundreds of thousands of the civil 
Crl.Org.P.No.89/11 etc.  
120 
servants serving in the Sindh Government. The impugned instruments on out 
of turn promotions are neither based on intelligible differentia nor relatable 
to lawful objects and by the impugned instruments the entire service 
structure has been distorted, affecting the inter-se seniority between the 
persons, who are serving on cadre posts after acquiring job through 
competitive process and their seniorities were and are superseded by the 
powers granted to the Chief Minister through Section 9A.  
 
159.   
On account of the promulgation of impugned legislative 
instruments, employees brought on contracts and or appointed or transferred 
on the basis of deputation were absorbed in the Sindh Government against 
the law declared by this Court and the Sindh High Court and thereafter they 
were granted out of turn promotions. The Sindh Government through the 
impugned legislation have conferred undue favour on a select group of 
undeserving and unmeritorious persons by way of deputation, posting, 
induction, out of turn promotion, ante-dated seniority, re-hiring. The 
impugned legislation protects and promotes the interests of select group of 
officers/ individuals to the disadvantage of hundreds of thousands of civil 
servants, depriving them of the equal protection of law under Articles 4 and 
25 of the Constitution.   
 
160.  
The impugned legislative instruments are violative of Article 
143 of the Constitution. Article 240 of the Constitution provides for service 
structure of civil servants. It refers (i) Federal Service (ii) Provincial Service 
(iii) All Pakistan Service. The last category of service, among others, can be 
exemplified by All Pakistan Unified Group. The provincial civil servants 
join All Pakistan Unified Group or Police Service of Pakistan in accordance 
Crl.Org.P.No.89/11 etc.  
121 
with their provincial quota when they acquire BS-19. They retain their 
original inter-se seniority with the provincial cadre, but they also compete, 
within the given federal quota, for their promotions to the higher grades i.e 
BS-20 and above. This policy of encadrement is regulated by the Esta Code. 
These guidelines/ instructions are applicable to all the Federal civil servants 
including those joining the All Pakistan United Group/Police Service of 
Pakistan on their provincial quota. By the impugned instruments, the civil 
servants have been granted out of turn promotion with backdated seniority.  
 
161.  
Therefore, it is important to ensure that both provincial and 
federal laws should be complementary rather than conflicting, or else the 
smooth progression from the provincial service to the All Pakistan Unified 
Group/P.S.P would become impossible and there would be an administrative 
chaos caused by conflicting laws and a myriad of litigation. The ultimate 
casualty of the impugned instruments would not only be the establishment of 
meritocratic public service but more ominously the certainty of law which 
undermines both legitimate expectancy individually among the civil servants 
as regards the smooth progression of their career, but also the overall 
administrative environment. Article 143 of the Constitution has been 
promulgated to harmonize and regulate the service of the civil servants from 
federal government and provincial governments on their opting for All 
Pakistan Unified Group/PSP. The impugned legislation would distort inter-
se seniority of the civil servants not only within the province but also the 
federal civil servants.  
 
162.  
The absorption and out of turn promotion under the impugned 
legislative instruments will also impinge on the self respect and dignity of 
Crl.Org.P.No.89/11 etc.  
122 
the civil servants, who will be forced to work under their rapidly and unduly 
promoted fellow officers, and under those who have been inducted from 
other services/cadres regardless of their (inductees) merit and results in the 
competitive exams (if they have appeared for exam at all) and as a result the 
genuine/bonafide civil servants will have prospects of their smooth 
progression and attainment of climax of careers hampered, hence the 
impugned instruments are violative of Article 14 of the Constitution. The 
laws are made to achieve lawful object. The impugned legislative 
instruments do not advance this concept while conferring powers on the 
Chief Minister to grant out of turn promotions, on the contrary the 
unstructured discretion vested in him has infringed the valuable rights of the 
meritorious civil servants of legitimate expectancy of attaining climax of 
careers.  
 
163.  
In order to discover the intent and wisdom behind the impugned 
legislation, we required the Additional Advocate General to place before us 
the debates of Assembly during the passage of the Bills. Such record was 
placed before us. After perusal of the record, we found that the 
Bills/proposed laws were not sent to the Standing Committee. No debate had 
taken place on the proposed laws which had far reaching effect on the rights 
of the civil servants. One of the impugned Acts contained statement of 
objects and reasons for promulgating the impugned legislation, which is 
reproduced here-under:- 
“The law enforcement personnel of Sindh Police in the past 
have risked their lives and exhibited exceptional acts of 
gallantry in the line of duty. Therefore, in order to retain the 
morale of the Force, it is expedient to make certain 
amendments in the Sindh Civil Servants Act, 1973. 
 
Crl.Org.P.No.89/11 etc.  
123 
 
 
The Bill seeks to achieve the above object.” 
 
164.  
We support that morale of police personnel be boosted, as 
intended in the aforesaid impugned legislations, and on their exhibiting 
exceptional acts of gallantry, they should be given awards and rewards on 
merits. In order to confer award or reward on the police officer for his act of 
gallantry the Sind Government will constitute a committee under Rule 8-B, 
to evaluate the performance of the police officer upon whom the proposed 
award or reward has to be bestowed. However, out of turn promotion in 
police force would not boost the morale of the police force, on the contrary 
by impugned legislative instruments granting out of turn promotion to police 
officers, has demoralized the force. This Court in the case of Watan Party 
reported in (PLD 2011 SC 997) has already directed the Sindh Government 
to depoliticize the police force. The out of turn promotions have engendered 
inequalities and rancor among the batch mates/course mates, rendering many 
of them junior/subordinate to their junior colleagues. Under section 9A, the 
Sindh Government, has granted out of turn promotions to the civil servants, 
who do not belong to police force. By using the word ‘Gallantry’ in section 
9-A of the Act of 1973, the legislature never intended to grant out of turn 
promotion to civil servants other than police force, but the Sindh 
Government has extended this benefit to civil servants. We for the aforesaid 
reasons stated hereinabove, are clear in our mind that the impugned 
legislations on the issue of out of turn promotion and grant of backdated 
seniority are violative of Articles of the Constitution referred to hereinabove 
and are liable to be struck down.  
 
Crl.Org.P.No.89/11 etc.  
124 
WHETHER THE IMPUGNED INSTRUMENTS HAVE 
NULLIFIED THE EFFECT OF THE JUDGMENTS OF 
THIS COURT AND THE SINDH HIGH COURT.  
 
 
165.  
The leading judgment on the subject issue, which our Courts 
have approvingly referred to the case of Indira Nehru Gandhi vs. Raj Narain 
(AIR 1975 S.C 2299) which relates to amendment in the Election Laws of 
India. In the said judgment Paras 190 and 191 are important and reproduced 
here-under:- 
“190.  
A declaration that an order made by a court of 
law is void is normally part of the judicial function and is not 
a legislative function. Although there is in the Constitution of 
India no rigid separation of powers, by and large the spheres 
of judicial function and legislative function have been 
demarcated and it is not permissible for the legislature to 
encroach upon the judicial sphere. It has accordingly been 
held that a legislature while it is entitled to change with 
retrospective effect the law which formed the basis of the 
judicial decision, it is not permissible to the legislature to 
declare the judgment of the court to be void or not binding 
(see Shri Prithvi Cotton Mills Ltd. V. Broach Borough 
Municipality, (1970) I SCR 388 (at page 392) = (AIR 1970 
SC 192 Janapada Sabha, Chhindwara v. The Central 
Provinces Syndicate Ltd., (1970 3 SCR 745 (at page 751) = 
(AIR 1971 SC 57) Municipal Corporation of the City of 
Ahmedabad etc. v. New Shorock Spg. & Wvg. Col. Ltd. Etc 
(1971) I SCR 288 = (AIR 1970 SC 1292) and State of Tamil 
Nadu v. M. Rayappa Gounder, AIR 1971 SC 231). 
191.  
The position is it prevails in the United States, 
where guarantee of due process of law is in operation, is 
given on pages 318-19 of Vol. 46 of the American 
Jurisprudence 2d as under: 
“The general rule is that the legislature may not 
destroy, annual, set aside, vacate, reverse, 
modify, or impair the final judgment of a court 
Crl.Org.P.No.89/11 etc.  
125 
of competent jurisdiction, so as to take away 
private rights which have become vested by the 
judgment. A statute attempting to do so has 
been held unconstitutional as an attempt on the 
part of the legislature to exercise judicial power, 
and as to violation of the constitutional 
guarantee of due process of law. The legislature 
is not only prohibited from reopening cases 
previously decided by the Courts, but is also 
forbidden to affect the inherent attributes of a 
judgment. That the statute is under the guise of 
an act affecting remedies does not alter the rule. 
It is worthy of notice, however, that there are 
cases in which judgments requiring acts to be 
done in the future may validly be affected by 
subsequent legislation making illegal that which 
the judgment found to be legal, or making legal 
that which the judgment found to be illegal. 
 
10.--- Judgment as to public right. 
 
With respect to legislative interference with a 
judgment, a distinction has been made between public and 
private rights under which distinction a statute may be valid 
even though it renders ineffective a judgment concerning a 
public right. Even after a public right has been established by 
the judgment of the court, it may be annulled by subsequent 
legislation.”  
 
166.  
This Court in the case of Fecto Belarus Tractor Ltd. vs. 
Government of Pakistan through Finance Economic Affairs and others (PLD 
2005 S.C 605) has held that when a legislature intends to validate the tax 
declared by a Court to be illegally collected under an individual law, the 
cause for ineffectiveness or invalidity must be removed before the validation 
can be said to have taken place effectively. It will not be sufficient merely to 
Crl.Org.P.No.89/11 etc.  
126 
pronounce in the statute by means of a non-obstante clause that the decision 
of the Court shall not bind the authorities, because that will amount to 
reversing a judicial decision rendered in exercise of the judicial power which 
is not within the domain of the legislature. It is therefore necessary that the 
conditions on which the decision of the Court intended to be avoided is 
based, must be altered so fundamentally, that the decision would not any 
longer be applicable to the altered circumstances. One of the accepted modes 
of achieving this object by the legislature is to re-enact retrospectively a 
valid and legal taxing provision, and adopting the fiction to make the tax 
already collected to stand under the re-enacted law. The legislature can even 
give its own meaning and interpretation of the law under which the tax was 
collected and by “legislative fiat” make the new meaning binding upon 
Courts. It is in one of these ways that the legislature can neutralize the effect 
of the earlier decision of the Court. The legislature has, within the bounds of 
the Constitutional limitations, the power to make such a law and give it 
retrospective effect so as to bind even past transactions. In ultimate analysis, 
therefore, the primary test of validating piece of legislation is whether the 
new provision removes the defect which the Court had found in the existing 
law and whether adequate provisions in the validating law for a valid 
imposition of tax were made.  
 
167.  
In order to nullify the judgment of the Court, unless basis for 
judgment in favour of a party is not removed, it could not affect the rights of 
a party in whose favour the same was passed. The issue of effect of 
nullification of judgment has already been discussed in the case of Mobashir 
Hassan reported in (PLD 2010 S.C 265), Para-76 discusses the effect of 
Crl.Org.P.No.89/11 etc.  
127 
nullification of a judgment by means of a legislation. In the said case, the 
view formed is identical to the one in the case of Indira Nehru Gandhi vs. 
Raj Narain (AIR 1975 S.C 2299) and Fecto Belarus Tractor Ltd. vs. 
Government of Pakistan through Finance Economic Affairs and others (PLD 
2005 S.C 605) and it was observed that legislature cannot nullify the effect 
of the judgment and there are certain limitations placed on its powers 
including the one i.e. by amending the law with retrospective effect on the 
basis of which the order or judgment has been passed thereby removing 
basis of the decision. In other words, the arguments of the learned AAG, Dr. 
Farough Naseem and Mr.Anwar Mansoor Khan that the legislature has the 
power to nullify the effect of judgment on the facts in the present case are 
without force. 
 
168.  
In the case in hand the Provincial Assembly has validated/ 
regularized the absorptions and out of turn promotions by the Ordinance of 
2011, Act XVII of 2011 and Act XXIV of 2013 without providing 
mechanism by which the absorptions and out of turn promotions with 
backdated seniority were given to the employees. The judgments on the 
issue of absorption were clear and in fact through impugned instruments, the 
Assembly validated the absorptions/out of turn promotions without noticing 
that while granting concessions to few blue-eyed persons, rights of all the 
civil servants guaranteed under the Constitution and Civil Servant Act were 
impaired. In fact the impugned instruments are in the nature of legislative 
judgment as they purport to take away jurisdiction of the Superior Courts to 
abridge the writ and legality of the provisions by which Sindh Government 
has conferred undue favours on a select group of undeserving persons by 
Crl.Org.P.No.89/11 etc.  
128 
way of deputation, posting, absorption out of turn promotions, ante-date 
seniority and re-hiring, hence they are violative of Article 175 of the 
Constitution.  It goes without saying that a repugnancy to the Constitution 
declared by this Court or a High Court cannot be validated or condoned by a 
legislature unless the Constitution is itself amended.  
 
169.  
We have also noticed that the amendments brought in by the 
impugned legislation are not in conformity with the principles defining 
parameters of ‘amendments’ brought in a statute. “Amendment” has been 
defined by Earl T. Crawford in the book authored by him titled as “The 
Construction of Statutes”. While defining the “Amendment”, he has referred 
to different books and case law developed by the Courts of United Kingdom 
and America that “A law is amended when it is in whole or in part permitted 
to remain and something is added to, or taken from it, or it is in some way 
changed or altered in order to make it more complete or perfect or 
effective”.  
 
170.  
The amendments made in the Act of 1973 through the 
impugned legislations have in fact changed the structure of the Act by 
introducing power (unrestrained discretion in the Chief Minister) which runs 
parallel to the Civil Servants Act and the recruitment rules framed 
thereunder. The amendment must meet the requirements of an original 
Statute. Since amendatory acts, strictly speaking, are not new laws but 
continuations of the old, the old act must be adequately identified. If the 
principles set forthwith hereinabove are applied to the impugned instruments 
then it can easily be concluded that virtually a parallel civil service system 
has been brought into existence which the provincial legislature is not 
Crl.Org.P.No.89/11 etc.  
129 
competent to do so, whereas Article 242 of the Constitution provides a 
uniform method of induction/recruitment to the services of the Federation 
and the Provinces by establishing Federal or Provincial Service 
Commissions through Federal and Provincial legislature.  
 
171.  
The contention of the learned Additional Advocate General is 
that defects/anomalies observed by the Courts in their judgments were 
cured/ removed by promulgating these legislative instruments. The material 
placed before us does not support the contention of the learned Additional 
Advocate General. In fact, we have noticed that some of the applicants 
before us were inducted on deputation in the Sindh Government. After the 
judgment of the Sindh High Court in C.P.No.1491 of 2010, they alongwith 
many other deputationists were ordered to be repatriated to their parent 
departments on 14.12.2010. The judgment of the Sindh High Court was 
appealed against by some of the deputationists and on 1.1.2011, leave was 
refused by this Court affirming the judgment of the Sindh High Court. 
Inspite of the directives of this Court and the Sindh High Court, the 
deputationists, in connivance with the Sindh Government, had obtained 
interim orders from the Sindh High Court by filing constitutional petitions. 
Upon intervention by this Court, the petitions filed by the deputationists 
were withdrawn and they were relieved on 2.5.2012, under the orders of this 
Court. In the intervening period and thereafter, these validation Acts were 
promulgated to defeat the orders of this Court and the Sindh High Court, 
which provided unwarranted protection to the unmeritorious and 
undeserving persons, who were absorbed by the Sindh Government in 
defiance of the orders of the Courts.  
Crl.Org.P.No.89/11 etc.  
130 
 
172.  
The contention of the learned Advocate General that the 
Provincial Assembly has absolute powers to promulgate law which may 
nullify the effect of a judgment is misconceived, as a general rule the 
legislature cannot destroy, annul, set aside, vacate, reverse, modify or impair 
a final judgment of a court of competent jurisdiction, nor fundamental rights 
guaranteed under the Constitution can be abridged by the legislature. The 
legislature is not only prohibited from reopening cases previously decided 
by the courts, but is also forbidden to affect the inherent attributes of a 
judgment through a piece of legislation as has been done in the case in hand. 
In ultimate analysis, therefore, the primary test for examining the vires of an 
instrument (validating) is whether the new provision removes the defect, 
which the court had found in the existing law and whether adequate 
provisions in the validating law have been introduced to the terms 
‘absorption’, ‘out of turn promotion’, ‘re-employment and ‘deputation’. We 
have already discussed hereinabove, the aforesaid terms, used in the 
impugned legislative instruments and have been interpreted by the courts 
prior to coming into field the impugned legislations. After examining the 
impugned legislations, we are of the considered view that these instruments 
cannot be construed to have nullified the effect of the judgments discussed 
hereinabove, as the instruments sought to be challenged, in fact, encourages 
nepotism and discourages transparent process of appointments of civil 
servants by recruitment and or by transfer in all the three modes provided by 
the Act of 1973 and the rules framed there-under. This court in fiscal matters 
has applied restraints from interfering in the legislative domain while 
examining the vires of a statute, but in the case in hand, the impugned 
Crl.Org.P.No.89/11 etc.  
131 
legislations through amendments and validation/regularization have 
hampered the fundamental rights of the civil servants with the sole object to 
extend favours to few blue-eyed of the government.  
 
173.  
We, therefore, are clear in our mind that amendments brought 
in the Act of 1973 by the impugned validating instruments do not meet the 
standards of jurisprudence which mandate safeguard provided to the civil 
servants under the Constitution. The impugned legislative instruments, 
therefore, do not have the effect to neutralize or nullify the judgments of the 
Courts referred to hereinabove.  
 
PRINCIPLE  OF LOCUS POENITENTIAE 
 
174.  
Locus poenitentiae is the power of receding till a decisive step 
is taken but it is not a principle of law that order once passed becomes 
irrevocable and past and closed transaction. If the order is illegal then 
perpetual rights cannot be gained on the basis of an illegal order. In the 
present case, the benefits extended to different employees or civil servants 
through the impugned legislations are not only violative of law but are also 
ultra vires of the Constitution referred hereinabove. In such like situation the 
principle of locus poenitentiae does not attract and in this regard this Court 
in the cases of Muhammad Nadeem Arif and others vs. Inspector General of 
Police, Punjab, Lahore and others (2010 PLC (C.S) 924) and The Engineer-
in-Chief Branch through Ministry of Defence, Rawalpindi and another vs. 
Jalaluddin (PLD 1992 S.C 207) has held that principle of locus poenitentiae 
would not be attracted in a case under which the benefit has been extended 
by a law, which is violative of the provisions of the Constitution.  
Crl.Org.P.No.89/11 etc.  
132 
 
175.  
For 
the 
aforesaid 
reasons 
we 
allow 
Constitution 
Petitions.No.71/2011, 23-K/2012, 21/2013 and 24 of 2013, and dispose of 
all the Misc. Applications and hold that the impugned legislations mentioned 
in para 115 are violative of the provisions of the Constitution discussed 
hereinabove. We further hold and declare that benefit of ‘absorptions’ 
extended by the Sindh Government since 1994, with or without backdated 
seniority, are declared ultra vires of the Constitution, as the learned 
Additional Advocate General has made a statement during hearing that the 
impugned validation instruments have granted legal cover to the 
employees/civil servants, who were absorbed since 1994. Likewise, we 
further hold and declare that all out of turn promotions made under section 
9-A of the Sindh Civil Servants Act, 1973, by the Sindh Government to an 
employee or civil servant with or without backdated seniority since 
22.1.2002, when section 9-A was inserted through Ordinance IV of 2002, 
are ultra vires of the Constitution. All Misc. Applications made by the 
absorbees in which interim orders were passed by this Court restraining the 
Government from complying with the orders of this Court dated 02.05.2012 
stand vacated.  We also hold that all the re-employment/rehiring of the 
retired Civil/Government Servants under the impugned instruments being 
violative of the constitution are declared nullity. We further direct that the 
nominations made by the Chief Minister in excess of the quota given by 
Rule 5(4) (b) of the West Pakistan Civil Service (Executive Branch) Rules, 
1964, are without lawful authority and all the 15 nominees (Assistant 
Commissioners) are reverted to their original positions.   
 
Crl.Org.P.No.89/11 etc.  
133 
176.  
For the aforesaid reasons, Civil Petition No.6-K of 2011 filed 
by Inayatullah Marwat is dismissed. Civil Appeals No.98 of 2010, 100-K of 
2010 and 131-K of 2010 filed by Government of Sindh are allowed and 
impugned judgments of the Sindh Service Tribunal dated 23.2.1010, 
22.3.2010 and 31.3.2010 passed in Appeals No.01 of 2009, 65 of 2009 and 
94 of 2009 respectively are set aside.  Civil Appeal No.12-K of 2012 filed 
by Dr. Nasimul Ghani Sahito and others against the absorption by Rule 
5(4)(b) of the West Pakistan Civil Service (Execution Branch) Rule 1964 of 
S.M. Kaleem Makki is allowed and the respondent is directed to be absorbed 
in a non-cadre post. Civil Appeals No.183-K of 2011, 184-K of 2011 and 
185-K of 2011 are also allowed and the impugned judgments dated 
17.2.2011, 12.3.2011 passed by the Sindh Service Tribunal, Karachi in 
Appeals No.39, 40 and 46 of 2008 respectively are set aside.  
 
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 promotion list and his promotion will be 
regularized on his turn alongwith his batch mates vide order dated 
Crl.Org.P.No.89/11 etc.  
134 
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.   
Thereafter Mirza Shahbaz Mughal was appointed by the Sindh 
Government as D.S.P along with 9 others bypassing recruitment rules and a 
complaint in the nature of an application was made before this Court. 
Comments were called and the Assistant AIG (Legal) informed the Court 
that Mirza Shahbaz Mughal along with 09 DSPs, was de-notified. After this 
Court reserved the judgment, we were informed that Notification 
denotifying Mirza Shahbaz Mughal as DSP was suspended by the Sindh 
High Court. The relevant R&Ps was called through the Registrar of the Sind 
High Court and it was noticed that Suit bearing No.102/2013 challenging his 
reversion to the rank of Sub-Inspector against the Sindh Government, 
Inspector General of Police and the Home Department 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 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, mala fide, without 
Crl.Org.P.No.89/11 etc.  
135 
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. 
 
 
179.  
Along with the suit, an injunction was sought and the learned 
Single Judge (in Chambers) on 01.02.2013 issued notice of the injunction 
application and in response on 04.02.2013 Ms. Naheed Naz Advocate for 
A.G Sindh appeared and sought time to file counter affidavit and Court 
while adjourning the matter ordered status-quo. The order dated 04.02.2013 
is reproduced herein below:- 
“04.02.2013. Mr. Muhammad Haseeb Jamali, Advocate for  
 the plaintiff 
 
 
 Ms. Naheed Naz, Advocate for A.G. Sindh 
________ 
 
 
Notice of CMA No.940/2013 was issued to the 
defendants. In response thereto Ms. Naheed Naz, Advocate 
appears and seeks time to file counter-affidavit. Parties may 
exchange their counter-affidavit and rejoinder if any, prior to 
the next date of hearing.  
 
 
To come up on 12.02.2013. Till next date of hearing both 
parties to maintain status-quo. 
 
 
 
 
 
 
 
 
 
           Sd/- 
 
 
 
 
 
 
 
  
        Judge” 
Crl.Org.P.No.89/11 etc.  
136 
 
180.  
It is interesting to observe that on perusal of the R&Ps we have 
noticed that a copy of the order of this Court dated 03.09.2012 passed in 
Civil Appeal No.131-K of 2010 and others was also filed alongwith the 
plaint. In the said order the statement of the Advocate General was recorded 
that notification of his reversion to the rank of Sub-Inspector will be issued. 
Para-2 of the order of this Court annexed with plaint was made illegible. In 
any event, the issue of out of turn promotions was alive before this Court 
and the order of this Court which was annexed along with plaint refers to it. 
After grant of status-quo in the suit, no counter affidavit was filed by the 
Advocate General office. On 8.5.2013, a notification by which Mirza 
Shahbaz Mughal was denotified as DSP was produced before this Court by 
the Additional Advocate General Sind along with Mr. Ali Sher Jakhrani AIG 
Legal at Islamabad, without disclosing the pendency of suit or of interim 
orders passed therein. Mirza Shahbaz Mughal, on issuance of aforesaid 
notification, appears to have approached the Sindh High Court by filing 
CMA in the said suit and on 16.05.2013, the Notification by which he was 
de-notified as DSP was suspended and contempt notice was issued to the 
Additional Chief Secretary for issuance of the Notification. Order dated 
16.05.2013 is reproduced herein below:- 
“16.05.2013 
 
 
Mr. M. Haseeb Jamali Advocate for the Plaintiff. 
 
 
 
 
 
.-.-.-.-.-.-.-.-. 
 
1) 
Urgent application is granted. 
 
2) 
Issue notice to the alleged contemnor. 
 
3) 
Learned Counsel for the Plaintiff contends that on 
04.02.2013 order to maintain status-quo was passed by this 
Court in the present suit. Learned Counsel for the Plaintiff 
Crl.Org.P.No.89/11 etc.  
137 
submits that in violation of the order passed by this Court 
alleged 
contemnor/Additional 
Chief 
Secretary 
on 
07.05.2013 issued Notification No.POL-HD/8-15/2012 and 
has withdrawn the earlier notification with immediate effect. 
Learned counsel for the Plaintiff further submits that the 
case of the Plaintiff does not fall to the officers who were 
given out of turn promotion and his case is of fresh 
appointment. Issue notice to the Defendants for 30.05.2013. 
Till next date of hearing operation of Notification No.POL-
HD/8-15/2012 dated 07.05.2013, issued by the alleged 
contemnor when the status-quo is operating, is suspended. 
   
     sd/- 
JUDGE” 
 
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 Sind 
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. 
 
182.  
  We also record appreciation for the assistance provided by the 
learned Additional Advocate General, Ch. Afrasiab Dr. Farough Naseem, 
Mr. Anwar Mansoor Khan, Mr. Yawar Farooqui and Mr. M.M.Aqil Awan 
during the proceedings. 
 
183.  
A copy of this judgment be sent to the Chief Justice, Sindh 
High Court through Registrar for circulating it amongst the learned Judges. 
A copy of this judgment be also sent to all the Chief Secretaries of the 
Provinces as well as the Secretary, Establishment Division, Government of 
Pakistan, Islamabad, with the direction to streamline the service structure of 
Crl.Org.P.No.89/11 etc.  
138 
civil servants in line with the principles laid down in this judgment. The 
Chief Secretary and Secretary, Services, Sindh, are further required to 
comply with this judgment in letter and spirit and report compliance within 
three weeks.   
 
J. 
 
 
J. 
 
 
 
J. 
 
Announced in Open Court on ____________ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
J 
 
APPROVED FOR REPORTING. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Crl.Org.P.No.89/11 etc.  
139 
 
 
 
 
Asif Saeed Khan Khosa, J.: It is true that the judicial precedent 
available thus far declares that mala fide cannot be attributed to the 
legislature but if a legislature deliberately and repeatedly embarks upon 
a venture to nullify considered judicial verdicts in an unlawful manner, 
trample the constitutional mandate and violate the law in the manner it 
was done in the present case then it is difficult to attribute bona fide to it 
either. 
 
 
 
  
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
