Department, Government of Sindh, the petitioner was transferred with immediate effect till further orders and posted in the Office of the Chairman, Enquiries & Anti-Corruption Establishment, Sindh, Karachi. Then again by virtue of an another order dated 21.12.2011, the petitioner was posted in Planning and Development Department, Government of Sindh, with immediate effect till further orders. Finally, vide order dated 05.12.2013, the petitioner was relieved/repatriated to his parent department i.e. Court of Special Judge, Anti-Corruption (Provincial), Karachi with immediate effect. The petitioner submitted joining report but he was not allowed to join his parent department. On 06.12.2013, the Special Judge, Anti-Corruption (Provincial), Karachi wrote a letter to the Secretary (Services), SGA&CD, Government of Sindh that there is no vacant post available to accommodate the petitioner.

3. In response to the notice issued by this Court, the comments were filed in which the respondent No.2 alleged that the petitioner was transferred on the ground of misconduct and corrupt practices. The Director Anit-Corruption Establishment had also taken serious notice regarding the attitude and improper behavior. It is further stated that surety documents were retained by the petitioner in his custody without any inventory, therefore directions were given to the Secretary (Services) to take disciplinary action against the petitioner. It is further contended that sufficient material available against the petitioner regarding corrupt and illegal activities, therefore, his joining was declined by his parent department. The comments were also submitted by the Reader of the respondent No.2 in which more or less identical standpoint was predicated with the addition that the petitioner may be allowed to join another Court/Department as his services is no more required by the respondent No.2.

4. A number of orders were passed in this petition one after another but still the petition is pending without any ultimate outcome. During pendency, the learned division bench of this court on 07.04.2015, remitted this matter to the Sindh Services Tribunal taking into account rather in the light of principle enunciated by the hon’ble Supreme Court in Civil Review Petition No.193/2013 (Ali Azhar Khan Baloch versus Province of Sindh & others) but vide order dated 05.06.2015, the Sindh Services Tribunal reached to the conclusion that they have no jurisdiction to hear the appeal and made a request in the genus of directions that the matter be transmitted to the Registrar of this court to place this appeal before the Tribunal constituted for the members of Subordinate Judiciary.

5. The learned counsel for the petitioner argued that the petitioner is civil servant and he is not member of subordinate judiciary so the findings of the services tribunal are perverse and irrational. The case of the petitioner cannot be tried by the Tribunal meant for Subordinate Judiciary. He further argued that if the Services Tribunal was of the view that they had no jurisdiction in the matter then the Record and proceedings could have been returned to this court simply and it was the prerogative and dispensation of the honorable Chief Justice of this court to pass the appropriate orders as his lordship may deem fit but on the contrary, the matter was remitted with the directions to the parties to appear before the Registrar of this court who was called upon to fix the case before the Tribunal constituted to deal the cases of the members of subordinate judiciary.

6. The learned A.A.G argued that the petitioner was repatriated to his parent department in view of the directions of the hon’ble Supreme Court contained in the Judgment reported in 2013 SCMR 1752 and the parent department is bound to bring back the petitioner but for one or other unconvincing excuses, the petitioner is being denied the right of joining and the matter is being delayed unnecessarily. He further argued that in view of the directions of the apex court, various civil servants were repatriated to their parent departments and the case of petitioner is not novel or unique therefore he is equally entitled to the right of repatriation in his parent department and any other view in the matter would amount the defiance of apex court order.

7. The raison d'être lead to the refutation are the alleged charges of misconduct which barricaded and impeded the petitioner’s joining in his parent department but at the same time, nothing is brought on record to demonstrate that any inquiry was conducted against him or any disciplinary proceedings were initiated. The learned A.A.G robustly argued that repatriation was ordered to implement the Judgment of the Apex Court and various other repatriation orders were also passed in the cases of number of employees of different departments. The respondent No.1 is Chief Secretary, Government of Sindh, he submitted the comments on objection filed by the petitioner in which it is clearly mentioned that the Government in pursuance of judgment passed by the hon’ble Supreme Court in criminal Original Petition No.89 of 2011 repatriated the petitioner to his parent department but the respondent No.2 declined to allow the petitioner joining for the reason that no vacancy exists. The department responded to the respondent No.2 to adjust the petitioner thereafter disciplinary action may be taken if he is found involved in any illegal activity.

8. We are sanguine that once the repatriation order was passed and conveyed, this should have been acted upon immediately. In the case in hand, the repatriation order was passed to implement the judgment of the apex court across the board and the judgment of hon’ble Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. If the judgment of the hon’ble Supreme Court is not implemented or put into effect, an answer to this question has been given under Article 204 of the Constitution. This is not the case here that after transfer of the petitioner to some other department, his parent department was wound up or bring to an end therefore the venue of repatriation was not accessible or reachable and for this reason the petitioner ought to step in surplus pool and wait for posting commensurate to his job and or matching position. Under Section 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, it is lucidly provided that a person who has been rendered surplus on account of abolition of post may be appointed to any post in any department or office of the Government provided that such person possess qualification as laid down for appointment to such post and such person shall be appointed to a post of equivalent or comparable basic scale and if such post is not available then to a post of lower basic pay scale. Seniority of such person in new cadre shall be reckoned from the date of appointment and previous service if not pensionable shall not count for pension and gratuity unless Government directs otherwise. As a whole, it is not the case of the petitioner that his post was abolished in the parent department so he should move on to surplus pool. Even in the judgment of hon’ble Supreme Court reported in 2015 SCMR 456 = SBLR 2015 SC 15 (Ali Azhar Khan Baloch vs. Province of Sindh & others), the Chief Secretary Sindh was directed to create surplus pool of the officers/officials who have been de-notified and create vacancies to accommodate them within a period of two months. It was further held that officers/officials who have repatriated to their parent departments shall be entitled to salaries and other benefits from the date they were relieved to join their parent department. It was further held that their seniority shall be maintained in their parent department with their batch-mate as if they were never relieved from their parent department.

9. So far as the allegation of misconduct is concerned, this can be taken into consideration obviously, once the petitioner is allowed joining thereafter if the competent authority is of the view that the petitioner has committed any act of misconduct, they may initiate appropriate proceedings beyond doubt but in accordance with law, but in the anticipation of future misconduct proceedings if any, the petitioner cannot be shorn of joining his parent department.

10. Now let us take up the order dated 5.6.2015 in which the Sindh Services Tribunal held that the they have no jurisdiction and directions were issued to send the R&P of the case to the Registrar of this court to place the matter before the Tribunal constituted for members of subordinate judiciary and the petitioner was directed to appear before the Registrar of this court. In fact by means of a common order, the Sindh Service Tribunal decided two appeals which were basically constitution petitions filed in this court but subsequently remitted by the learned division bench to the Sindh Services Tribunal in view of directions embodied in the judgment of apex court in the case Ali Azhar Khan Baloch (supra). It is quite significant to note that one of the appeals disposed of through the aforesaid common order is the case of Masood Hassan (C.P.No.D-6738/2014) which was remitted by the scrutiny bench headed by the hon’ble Chief Justice of this court vide order dated 10.2.2015 when the counsel for the petitioner took the plea that the petitioner is employee of Anti-Corruption Department, therefore he cannot be regarded as civil servant and since he is working in Anti-Corruption Court therefore, he is a member of subordinate judiciary. After examining the definition of subordinate judiciary and before remitting the case to the Sindh Service Tribunal, the learned scrutiny bench clearly held that Anti-corruption court being attached department of Government of Sindh its employees are civil servant and the matter is to be decided by the Sindh Service Tribunal.

11. The Sindh Subordinate Judiciary Service Tribunal was constituted under the powers conferred by Section 8 of the Sindh Service Tribunal Act, 1973. Under clause (g) of Rule 2, member of the subordinate judiciary means “District & Sessions Judge, Additional District and Sessions Judge, Assistant Sessions Judge, Senior Civil Judge, Civil Judge or Judicial Magistrate wherever he may be or any other officer declared by Government to be a member of subordinate judiciary”. However, under definition clause (bb) of Section 2 of the Sindh Service Tribunal Act, definition of member of subordinate judiciary means “a District and Sessions Judge, Additional District and Sessions Judge, Senior Civil Judge and Assistant Sessions Judge, Civil Judge and Judicial Magistrate and includes an officer and servant of the High Court or any employee working under the administrative control of the District and Sessions Judge wherever he may be”. If we analyze both definitions in juxtaposition, the definition of member of subordinate judiciary provided under the Sindh Service Tribunal Act also includes an officer and servant of the High Court or any employee working under the administrative control of the District and Sessions Judge wherever he may be. The definition of appeal under the Sindh Subordinate Judiciary Tribunal (Procedure) Rules 1993 means an appeal preferred under Section 4 of the Sindh Service Tribunal Act, 1973 which provides that any civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of any of the terms and condition of the service may within thirty days of the communication of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter. It is further provided in the same section that where an appeal, review or representation to a departmental authority is provided under the Sindh Civil Servants Act 1973 or any Rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred. Section 3-B of the Sindh Service Tribunal Act germane to the Tribunals for members of the subordinate judiciary which provides that “Notwithstanding anything contained in Section 3, the Chief Justice of the High Court may establish a Tribunal consisting of three Judges of the High Court, the most senior of whom shall be the Chairman and the other two Judges shall act as members of the Tribunal and the Tribunal so established shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of members of the subordinate judiciary, including the disciplinary matters”.

12. We have no confusion or perplexity in our mind that the petitioner is not member of subordinate judiciary therefore no appeals lies to the Tribunal meant for the members of subordinate judiciary. His administrative control vest in Government of Sindh. Secondly, it is a simple matter of repatriation of the petitioner in his parent department under the directions of the Supreme Court which has nothing to do with the terms and conditions of service nor any final order is available to assail. The petitioner is not claiming any particular posting except that he may be repatriated to his parent department. The direction of the Sindh Services Tribunal to the learned Registrar of this court to fix the matter in the Tribunal constituted for members of Sub-ordinate Judiciary is misconceived and coram non judice. If the Services Tribunal was of the view that they had no jurisdiction to hear the appeal for any reason, they could have simply remitted the matter back to the Registrar of this Court to place the matter before the honourable Chief Justice of this court to pass the order as his lordship may deem fit but on the contrary, the Sindh Services Tribunal called upon the learned Registrar of this Court directly to fix the appeal before the Tribunal constituted for the members of subordinate judiciary as if the Sindh Services Tribunal is an appellate court of this court. Such direction and or a request in the semblance of direction are not only unwarranted and incongruous but also highly undesirable and we have no other alternative but to discard the same.

13. As the result of above discussion, the petition is disposed of with the directions to respondent No.2 to allow the petitioner’s joining in his parent department; however, the competent authority is at liberty to initiate disciplinary proceedings against the petitioner on the charges of misconduct, if any. The learned counsel for the petitioner also complained that since 05.12.2013 when the repatriation order was issued, the petitioner has not been paid his salary. In this regard we direct the respondents to immediately release/pay the salary of the petitioner. The compliance report should be submitted through MIT-II of this court within 10 days.

Judge