2022 P L C (C.S.) 1326
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Muhammad Kamran Khan Mulakhail, J
SAIRA ATTA
Versus
The GOVERNMENT OF BALOCHISTAN through Chief Secretary and others
C.P. No.555 of 2020, decided on 31st May, 2021.
Balochistan Civil Servants Act (IX of 1974) ---
----S.14 ---Employment after retirement ---Scope ---Petitioner was aggrieved of the re -
employment of respondent after his retirement on attaining the age of superannuation ---
Contention of Provincial Government wa s that the contract period of respondent had expired
and his contractual appointment was not extended, whereas the post created for his
appointment had also been abolished ---Validity ---Re-employment of any retired civil servant
had to be made subject to S. 14 of the Balochistan Civil Servants Act, 1974, read with
instructions contained in Estacode ---Re-employment of respondent was virtually against the
Balochistan Civil Servants Act, 1974 and the instructions contained in Sl. No. 21 of
Estacode, which other wise had force of rule and law ---Re-employment of persons in service
on their retirement could be made in public interest because re -employment against a
sanctioned post was likely to affect the junior officers, who were waiting for promotion to
the next h igher rank as their right of promotion was blocked and they would have to wait till
such re -employed officer completed his contract ---In the meanwhile, they would have to face
difficulties in maintaining their seniority ---Promotion of an employee was not t o be blocked
to accommodate a retired officer, however, if the right of promotion was not blocked by re -
employment, then such powers could be exercised and that too in exceptional cases ---Official
respondents were directed to avoid any such appointment, an d in case there was a dire need
of any appointment the guidelines given by the Supreme Court were to be followed in letter
and spirit ---Petition was disposed of accordingly.
Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752
rel.
Suo Motu Gas Case No.16 of 2011 along with CMAs PLD 2013 SC 443 fol.
Muhammad Ali Kanrani, Hazrat Ali Kakar, Anayat Kasi and Masood Tareen for
Petitioners.
Shai Haq Baloch, A.A.G. for the State.
Date of hearing: 18th March, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----Through this petition,
following relief has been sought:
"It is, therefore, accordingly prayed that this Hon'ble Court may graciously be
pleased:
a) To declare that the impugned act of the respondent government by re -employing
respondent No.03 without due procedure and contrary to law, procedure and dictums
of the apex Court of the country is illegal, null and void ab initio, and set that aside
accordi ngly.
b) To further declare that the re -employment of respondent No.03 is violation of the
judgment of the Hon'ble Supreme Court of Pakistan reported as PLD 2013 SC 443,
the Balochistan Civil Servant (Appointment, Promotion and Transfer) Rules, 2009,
and t he Balochistan Civil Servant Act, 1974.
(c) To direct the respondent government to immediately terminate the contract awarded
to respondent No. 03 by way of re -employment / employment after retirement, with
further directions to the respondent government, to recover all the benefits (salary,
etc) obtained by respondent No.03 including vehicle and other perks and privileges
and also immediately disassociate him from the office of Chief Secretary Balochistan.
(d) To further direct the respondent government to post a regular qualified incumbent at
the same post by adopting the due law and procedure applicable in the province.
(e) To further direct the respondent government the judgment of the Hon'ble Supreme
Court of Pakistan reported as PLD 2013 SC 443 and imm ediately terminate all the re -
employments awarded to the persons holding the posts after retirement / attaining age
of superannuation, and they be substituted by regular qualified incumbents of the
province.
(f) To grant any other relief/reliefs, as deemed fit and proper in the circumstances of the
case. "
2. It is the petitioner's case that she being post -graduate qualified from London, has
served on key posts in the Province of Balochistan and rendered her services with great zeal
and zest; that Governmen t of Balochistan has appointed some retired officers either on
contract basis or on ad hoc against permanent posts vide impugned letter No.FD.S.IV.2 -
11/2018 -1019/2895 -96 dated 26th April, 2019; however, neither any procedure for such
appointment has been a dopted, nor the relevant rules have been followed; that the re -
employment of respondent No.3 against a regular post or against newly established post
negates the settled right of the officers and amounts to deprivation of their legal right of
promotion, an d their seniority would also suffer. Hence this petition.
3. Learned counsel for the petitioner inter alia contended that the re -employment of
respondent No.3 after his retirement is against the principles of Rules and amounted to
deprivation of the fundam ental promotion rights of the serving civil servants; that no specific
reason for re -employment of the respondent has been given, which was the basic ingredient
for any such re -employment of a retired civil servant, that due to the re -employment of the
respondent No.3, the officers waiting for their promotion and transfer postings have been
deprived of their legal right; he finally urged for acceptance of the petition in the terms as
prayed for.
4. Conversely, the learned Additional Advocate General contend ed that the respondent
No.3 was not appointed/re -employed against any sanctioned post, rather a post of Senior
Coordination Officer CPEC (BPS -19) was created only for the purpose to get benefit from
his experience; that the contract period of respondent No .3 has already been expired on 12th
April, 2021 and he is no more in service and the post created thereon also stood abolished; he
finally urged for dismissal of the petition.
5. We have heard learned counsel for the parties and perused record of the case
minutely.
6. The petitioner is aggrieved of the re -employment of respondent No.3 after his
retirement on attaining the age of superannuation. However, as per the assertion of the
learned Additional Advocate General, that the contract period of respondent N o.3 has already
been expired on 12th April 2021 and his contract appointment has not been extended,
whereas the post created has also been abolished, therefore, the grievance of the petitioner to
the extent of respondent No.3's appointment no more exists.
7. With regard to the prayer made in the petition about appointment of qualified
incumbent against the regular post, it is observed that re -employment of any retired civil
servant has to be made subject to section 14 of the Civil Servant Act, 1973, read wi th
instructions contained in Estacode, Vol.1, Edn, 2007 under the heading "Re -Employment".
The Section 14 of the Balochistan Civil Servants Act, 1974, stipulates:
(1) A retired civil servant shall not ordinarily be re -employed under the Balochistan
Govern ment, unless such re -employment is necessary in the public interest and is
made with the prior approval of the authority next above the appointing authority:
Provided that, where the appointing authority is the Government, such re -employment
may be ordere d with the approval of the Government.
Subject to the provisions of subsection (1) of section 3 of the Ex -Government
Servants (Employment with Foreign Governments) (Prohibition) Act, 1966 (XII of
1966), a civil servant may, during leave preparatory to ret irement, or after retirement
from Government service, seek any private employment:
Provided that, where employment is sought by a civil servant while on leave
preparatory to retirement or within two years of the date of his retirement, he shall
obtain the prior approval of the prescribed authority. "
Similarly the Sl. No. 21 of the Estacode contains the following instructions:
Policy and Procedure for re -employment of retired civil servants
Sl. No. 21: It has been noticed that Ministries/Divisions initi ate proposals for re -
employment of Government servants after superannuation as a routine measure. It is
emphasized that re -employment beyond superannuation should be an exception and
not the rule. It may be recommended only in cases where Government consid ers that
the experience gained by the retiring person is of vital importance and can be
gainfully utilized, particularly in fields where suitably qualified and experienced
persons are not available.
2. For achievement of the objective mentioned above, the present Government has
framed a policy for re -employment of Government servants and cases for re -
employment would, in future, be considered in accordance with the following criteria:
(i) Non availability of suitably qualified or experienced officers to re place the retiring
officer;
(ii) the officer is a highly competent person with distinction in his profession/field;
(iii) the re -employment does not cause a promotion block; and
(iv) retention of the retiring officer, for a specified period, is in the public interest.
This policy would also apply to government controlled corporations and other
autonomous bodies.
3. Proposals for re -employment are required to be accompanied with the following
documents/information: -
(a) The proposal duly signed by Secretary or Additional Secretary Incharge of the
Ministry concerned is received in the Establishment Division 6 months before the
officer is due to attain the age of superannuation and has the approv al of the Minister
Incharge;
(b) the steps taken to train the substitute, if any;
(c) ACRs with photograph, ICP chart and bio -data on prescribed proforma; and
(d) certificate that the officer is medically fit.
4. ... ... .....
5 ... ... ... ...
Viewing from all angles the re -employment of respondent No.3 is/was virtually
against the Balochistan Service Tribunal Act, 1974 and the instructions contained in Sl. No.
21 of the Estacode contains the instructions, which otherwise have force of rule and law. The
Hon'ble Supreme Court in case "PLD 2013 Supreme Court 443" "SUO MOTU CASE NO.16
OF 2011 ALONG WITH CMAs" has laid down the criteria for appointment of a civil servant
after his retirement, the relevant passage is reproduced herein below:
15. This Court i n Suo Motu Case No.24 of 2010 (PLD 2011 SC 277), has held that re -
employment of such persons in services on their retirement must be made in public
interest because re -employment against a sanctioned post is likely to affect the junior
officers, who are wa iting for promotion to the next higher rank as their right of
promotion is blocked. And they have to wait till such re -employed officer completes
his contract. In the meanwhile, they have to face difficulties in maintaining their
seniority etc. It is a set tled principle of law that the promotion of an employee is not
to be blocked to accommodate a retired officer, however, if the right of promotion is
not blocked by re -employment, then such powers can be exercised, that too in an
exceptional case. Surprisin gly, the Government of Sindh had not supported re -
employment of the police officers and it is stated that whatever order is passed by this
Court, same shall be implemented. It is to be noted that it is the prerogative of the
Government to look into all suc h cases, applying relevant provisions of law noted
hereinabove and the observations made by this Court from time to time. For ready
reference reliance can be placed on Suo Motu Case No.24 of 2010 (ibid), a judgment,
which has been delivered by an 8 -Member Bench of this Court. Relevant para
therefrom is reproduced herein below: --
"5. Learned Attorney General has also placed on record summary of some of the
Police Officers who are re -employed on contract basis. A perusal whereof indicates
that prima facie wh ile they were re -employed, the provisions of law i.e. section 14 of
the Civil Servants Act, 1973 as well as instructions contained in Esta Code in
Volume -1, Edition 2007 under the heading "Re -Employment" and the judgments of
the superior courts on the subj ect were not considered/adhered to. It is to be noted that
for establishing rule of law and Constitutionalism, it is necessary that the relevant
provisions should be followed strictly in letter and spirit otherwise it would not be
possible to provide an ef fective machinery in law particularly in Police Department to
ensure law and order, so the peace in the country, at the same time to avoid violation
of the relevant provisions of law noted hereinbefore, which is tantamount to blocking
the promotion of the Officers who have also served in the Forces and are waiting for
their promotion but they are not getting chance because of the re -
employment/contract awarded to the retired Officers. This is not only in the Police
Department but for the purpose of achievin g good governance; the same principle
should be followed and strictly applied in other Departments as well. Be that as it
may, we are adjourning this case and in the meanwhile learned Attorney -General shall
take up the matter with the Government/Competent Authority so it may take
necessary steps to rectify if any omission has been committed, before the next date of
hearing. Similarly, the learned Attorney -General shall convey this order to the
Secretary, Establishment Division and the Chief Secretaries of t he Provinces to ensure
that if any Civil Servant or other person who has been re -employed, his case be also
examined in terms of the provisions of law and both Federal and Provincial
Governments should take necessary steps to ensure that re -employment or
employment on contract basis are not made in violation of the relevant law. "
While the same view was approvingly reiterated by the Hon'ble Supreme Court in
case "2013 SCMR 1752" "CONTEMPT PROCEEDINGS AGAINST CHIEF SECRETARY,
SINDH AND OTHERS" wherein it w as held:
RE -EMPLOYMENT
138. Dr. Farough Naseem, Mr. Anwar Mansoor Khan and Mr. Yawar Farooqui did
not address the Court on this issue.
138(sic.) Through the impugned Ordinance No. VI of 2012 and Act XIV of 2013, the
Sindh Government, by virtue of the a mendment 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 subsection (3) was introduced to
defeat the judicial pronouncement with regard t o induction through re -employment of
retired officers on contract basis. The post retirement re -employment is major
problem in the smooth service of career officers in terms of promotions and postings
instilling a sense of injustice. This Court has time an d again recorded its displeasure
and reservations to re -employment. In Human Rights Cases Nos. 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 discha rged 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 off icers, 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 importanc e 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 a ll 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 have opened flood gates of re -
employment for those who have access to Authorities. There is no scheme provided
by the Sindh Government by amending subsection, 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 ser vants, who are in service. The 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 v.
Federation of Pakistan and other s (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 affect terms and conditions of their service e.g. tenure of
their employment; pay and grade e arned 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 t o 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 allow ing 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 withi n 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 Governmen t.
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 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 Motu Case No. 16 of 2011 and on 22 -3-2013, 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 intere st 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 t he 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 de finite period.
144. We, therefore, hold that re -employment of such a nature as proposed under the
amended subsection (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 rehiring 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."
In view of the afore -quoted provisions of law and the dictums laid down by the
Hon'ble Supreme Court of Pakistan, the employment after retirement in no way can be
termed as legal and in accordance with law, unless, the same is in consonance with the
provisions of Balochistan Civ il Servants Act, 1974 and the guidelines given by the Hon'ble
Supreme Court, therefore, the respondents Nos. 1 and 2 are directed to avoid any such
appointment, and in case there is dire need of any appointment, the guidelines given by the
Hon'ble Supreme Court is to be strictly followed in letter and spirit.
The petition stands disposed of in the above terms.
Office is directed to transmit copy of this order to the respondents Nos. 1 and 2 for
compliance.
SA/140/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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