ISLAMABAD: The Supreme Court Wednesday granted leave to appeal against the Sindh High Court’s verdict to declare Sindh Civil Servants (Provincial Management Service) Rules, 2018 ultra vires to the Constitution.
The Court, however, dismissed the Sindh government’s plea to suspend the SHC’s judgment but restrained the High Court to proceed further with the contempt petitions against the provincial government.
A three-judge bench, headed by Justice Ijazul Ahsan, heard the Sindh provincial government’s appeal against the SHC.
Additional Advocate General submitted that with the approval of the competent authority/chief minister, Sindh the cadre strength/list of the posts in each grade from BS-17 to BS-21 of Services, General Administration and Coordination Department was notified.
He stated that the creation of Provincial Management Service by abolishing/merging two services i.e. ex-PCS and PSS is an administrative dispensation and does not infringe upon the rights of existing members of the two dying cadres as their terms and conditions of service will remain the same till the last incumbent retires from services as provided under Rule 5(IV) of the said rules.
The AAG Sindh further submitted that the post of section officers in PSS (PS-17) meant for initial recruitment were made as per method prescribed vide notification dated 10-19-1993 through Combined Competitive Examination by the Sindh Public Service Commission.
Similarly, the post of Assistant Commissioner (Ex-PCS/ BS-17) meant for initial recruitment was made as per method prescribed under West Pakistan Civil Servants (Executive Branch) Rules, 1964 through Combined Competitive Examination by the Sindh Public Service Commission. However, in pursuance of the orders dated 07-03-2017 passed by the Court the Sindh government has framed the Sindh Civil Servants (PMS) Rules, 2018, he added.
He informed that as per Schedule-II of Rule 4 of Sindh Civil Servants (PMS) Rules, 2018 the 50 percent posts of the PMS (BS-17) shall be filled by promotion of 25 percent each from Mukhtiarkar and Superintendents/Private Secretaries who are graduates and have passed the prescribed Departmental Examination.
The AAG, therefore, the respondents filed a constitution petition under Article 199 of Constitution before the Sindh High Court praying to declare Sindh Civil Servants (Provincial Management Service) Rules, 2018 are ultra vires as having been issued incompetently and without the prior approval of the provincial cabinet in violation of the law and the Supreme Court judgment in Mustafa Impex.
The respondents also prayed the SHC to declare the Sindh Civil Servants (Provincial Management Service) Rules, 2018 are ultra vires and having been issued in violation of Article 240 of the Constitution and the SC judgments (2013 SCMR 1752, 2015 SCMR 353 and 2015 SCMR 456).
The SHC declared that the PMS Rules 2018 are violative of Article 9, 139 (3) and 249(b) of the Constitution besides they are violative of Section 8 and 9 of Sindh Civil Servants Act 1973. It also declared the notification dated 20-02-2018 notifying the Sindh Civil Servants (Provincial Management Service) Rules, 2018 as ultra vires of the Constitution and Sindh Civil Servants Act, 1973.
The AAG contended that the SHC judgment is not sustainable in law and facts, and has failed to consider that the respondents are Civil Servants and their petitions under Article 199 are barred by Article 212 of the Constitution.
The SHC also failed to appreciate that the subject matter of the petitions relates to the terms and conditions of Service and only the Sindh Service Tribunal has the exclusive powers to deal with the subject involved in the petitions.
The High Court also failed to consider that the Provincial Management Service Rules 2018 are framed under Section 26 of Sindh Civil Servants Act 1973.
The case is adjourned until May.
Copyright Business Recorder, 2022
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