Current Charge Appointments of Government Employees

Current Charge Appointments of Government Employees Case Laws Constitutional Law Employment & Incentives Esta Code Inquisitorial Proceedings Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Quo Warranto Solutions - Constitutional Law Mr. Justice Mirza Viqas Rauf in his judgment has decided the issue regarding current charge appointments of Government employees in Writ Petition No. 40259 of 2015.

1. Khan Bahadar (petitioner), a driver of Pakistan Public Works Department who has completed his service and retired from the department, questions the appointment of Shabbir Hussain Zaidi (respondent No.3), who is posted as Additional Estate Officer (BS-18) on current charge basis. The appointment is assailed on the ground that respondent No.3, being a non-gazetted official (BS-14) is incompetent to hold the post of Additional Estate Officer (BS-18), as appointed vide letter dated 20th of August, 2015, which is impugned herein.

2. While resisting the instant petition, respondents No.1 & 2 submitted their report and parawise comments. The instant petition was at pre-admission stage, however with the concurrence of all in attendance, the same is treated as Pacca case and decided as such.

3. Learned counsel for the petitioner submitted that respondent No.3, being an employee in BS-14 was not eligible for appointment as Additional Estate Officer (BS-18) thus impugned order is nullity in the eyes of law. In support of his contentions learned counsel referred Chapter 2 Part II of The Estacode to show that the appointment of respondent No.3 on current charge basis is illegal and unlawful.

4. On the other hand, learned Deputy Attorney General appearing on behalf of respondents No.1 & 2 submitted that the instant petition is tainted with malafide as the same is the outcome of motivation on part of the petitioner.

5. Learned counsel representing respondent No.3 contended that the appointment of respondent No.3 was made by the competent authority which is in accord with law. He added that due to shortage of officers in the respective grades, respondent No.3 has been appointed on current charge basis after observing all the codal formalities.

6. After having been heard learned counsels for both the sides as well as learned Law Officer and having gone through the record, first of all I would like to ponder upon the issue of maintainability of the instant petition, as raised by the respondents. There is no cavil that the petitioner alongwith his son namely Muhammad Hassan Sardar filed a suit for declaration and permanent injunction before the Civil Court relating to the allotment of accommodation but mere filing of suit is not sufficient to disqualify the petitioner to knock the doors of this Court for pointing out the legal infirmities qua the appointment of respondent No.3. The matter relating to accommodation can be dealt with as per The Accommodation Allocation Rules, 2002. The proceedings in the instant petition are of quo warranto which are not strictly adversarial in nature and it is also not necessary that the person seeking writ of quo warranto must be aggrieved, so the question of locus standi of a petitioner is immaterial. Since the proceedings in the writ of quo warranto are inquisitorial so anybody can move for the same and it is upto the judicial conscious of the Court to see as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973. The said article is meant to control the exercise of unbridled powers by the executive for making appointments to public offices against the law and also to protect a citizen from being deprived of a public office to which he had a right. In terms of Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973, it is within the judicial domain of the Court to call upon the holder of any public office to show as to by what right he is holding the said office, if there is some dispute with regard to his competency to hold such office on the basis of lack of transparency, favoritism, nepotism or personal whims of the executive. The respondents have failed to bring on record any disqualification of the petitioner to file the instant petition, thus the same is competent and proceedable in all respects. Reliance in this respect can be placed on “Barrister Sardar Muhammad versus Federation of Pakistan and others” (PLD 2013 Lahore 343).

7. So far merits of the instant petition are concerned, it would be advantageous to first examine the relevant law governing the subject. For this purpose, we will have to advert to Chapter 2 Part II of the ESTACODE, 2010 Edition at Sl. No.117 (at P. 190) pertaining to “Appointment” which reads as under:

Current/Additional Charge and Acting Charge Appointments

According to the existing instructions all appointments by promotion in higher posts are to be made through regular selection process i.e. with the approval of the Central Selection Board/Departmental Promotion Committee and the authority competent to make appointment to the grade in which the vacancy exists. However, in those cases where a vacancy in a higher post occurs for less than two months and it is considered impossible for good reasons to make arrangements for day to day work of that post to be carried on otherwise, the current charge of the duties of that post may be given temporarily, with the approval of the authority competent to make appointments to the said post, to the most senior officer in the cadre present at the place or in the organization where the vacancy may have occurred if he is otherwise fit and eligible for promotion.

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