ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3595/2014

___________________________________________________________________

Date                        Order with signature of Judge

1.For Katcha Peshi.

2.For hearing of CMA No.18368/2014.

 

 

                                                            Present:-

                                                            1) Mr. Justice Syed Hasan Azhar Rizvi

                                                            2) Mr. Justice Azizur Rehman

 

 

Date of hearing:        16.10.2014:

 

 

 

                        Syed Ashiq Raza, Advocate for the Petitioner.

 

                        M/s. Abdul Sadiq Tanoli and Asif Hussain Mangi,

learned Standing counsel a/w. Syed Rashid Hussain

Deputy Director ECP & Mr. Abdullah, Law Officer, ECP.

                                                         _____________

 

 

SYED HASAN AZHAR RIZVI, J:-  This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan with the following prayers:-

 

“(a)      Declare that the Respondent No.1 has no authority to grant extension in contract of Election Tribunal in Sindh unilaterally and without approval of Respondent No.2 (Chief Justice) and all self-innovative extension in tenure of Respondents No.3 and 4 after 30th June 2014 through Notification dated 30th June 2014 is illegal, void ab initio having no legal consequences;

 

(b)       Declare that the Respondents No.3 & 4 are o more Election Tribunal in Sindh after 30th June 2014 and their appointment’s notification dated 28th May 2013 has expired due to efflux of time;

           

(c)        Mandatory and permanent injunction restraining Respondents from claiming or holding or proceedings as Election Tribunal in whatsoever manner;

 

(d)       Any other relief which this Honorable Court deem proper may also be granted.”

 

2.         We have heard the learned counsel for the petitioner and learned Standing counsel at Katcha Peshi stage and perused the available material.

 

3.         Syed Ashiq Raza, learned counsel for the petitioner has contended that the Notification dated 30.06.2014 issued by respondent No.1 for extension in contract of respondents No.3 and 4 is illegal, void ab initio, as it was issued without approval, consent and/or recommendation of respondent No.2 which is in contravention with the judicial dicta laid down by the Hon’ble Supreme Court of Pakistan in C.P. No.53/2001 and C.P. No.83/2012. He drawn our attention to the Notification dated 23.05.2013 issued by respondent No.1 thereby appointed three Election Tribunal at Karachi, Hyderabad and Sukkur, which has been withdrawn through another Notification dated 28th May, 2013 (Annexure P/1), as it was issued without consultation with the Hon’ble Chief Justice of High Court. He also has contended that on the same day another Notification dated 28.05.2013 (Annexure P/2) was issued and appointed Dr. Zafar Ahmed Khan Sherwani, retired District & Sessions Judge as Election Tribunal at Karachi; Mr. Zaheeruddin S. Leghari, retired District & Sessions Jude as Election Tribunal at Sukkur, and Mr. Ashfaq Ahmed Baloch, retired District & Sessions Jude as Election Tribunal at Hyderabad. All these appointments were on contract basis with effect from the date the incumbent assumes charge of post for a period upto 30th June, 2014, which was made by the respondent No.1 in consultation with and on the recommendations of the Hon’ble Chief Justice of Sindh High Court, Karachi. He has submitted that nobody can be appointed as Election Tribunal without consultation and recommendation of the respective Chief Justice and secondly for one time only and extension in tenure is permissible that is yet to be consented by the consultative authority. He has also referred to statement dated 10.10.2014 filed by him alongwith copy of Notification issued by Ministry of Law, Justice and Parliamentary Affairs dated 16.03.2011 and a copy of order dated 31.5.2011 passed in C.P. No.D-881/2011, wherein the Division Bench of this Court while issuing notice has restrained Mr. Muhammad Arif Moton, Advocate to act and perform functions of Member Judicial Customs Appellate Tribunal. He, therefore, prayed for allowing the instant petition by declaring the impugned Notification dated 30.06.2014 thereby extension in contract of tenure of respondents No.3 and 4 is illegal, void ab initio having no legal consequences.

 

4.         Learned Standing counsel while relying on the parawise comments already filed by the respondents No.1 and 2, vehemently opposed the instant petition. Learned Standing counsel fully support the Notification dated 30.06.2014 issued by respondent No.1 and stated that the appointments of respondents No.3 and 4 were made on purely contract basis with the meaningful consultation of the Hon’ble Chief Justice of High Court of Sindh and similarly the subsequent extension of six months vide Notification dated 30.6.2014 was in continuation of the earlier Notification dated 28.5.2013, which terms and conditions provided extension for another one year. He urged that the petitioner has misconceived the dictum of the Hon’ble Supreme Court laid down in the case of Government of Sindh vs. Sharaf Faridi’s (PLD 1994 SC 105) , similarly the case of Al-Jehad Trust vs. Federation of Pakistan (PLD 1996 SC 324) and the case of Dr. Mubashir Hassan & Others vs. Federation of Pakistan & Others (PLD 2010 SC 265). He submitted that no illegality or irregularity has been committed by respondent No.1 for extension in contract of respondents No.3 and 4, which was made entirely with the consultation and recommendation of the Hon’ble Chief Justice of the High Court of Sindh in view of the provisions of Section 57(2) of the Representation of People Act, 1976. Therefore, he prayed for dismissal of instant petition with cost.

 

5.         We have given our anxious consideration to the arguments advanced by the learned counsel for the petitioner and learned Standing counsel, so also the judgment rendered by the Hon’ble Supreme Court of Pakistan in C.P. No.53/2007 and C.P. No.83/2012. The petitioner has relied upon the judgment rendered by the Hon’ble Supreme Court of Pakistan, referred to above. For advantageous, the relevant observations made by the Hon’ble Apex Court in the above referred case are reproduced below:-

 

“……..If a retired Judge of the High Court is to be appointed as Chairman of the Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal, who may nominate a retired judge. The tenure of such incumbent should not be for a period of more than three years for one time only……..”

 

6.         It appears from the parawise comments filed by respondent No.2 that prior consultation for appointment of respondents No.3 and 4 had been sought from the Hon’ble Chief Justice, High Court of Sindh at Karachi. Para-2 of the comments filed by the respondent No.2 is reproduced below for ready reference:-

 

“2.       The contents of paragraph No.2 are the matter of record and can be verified from there, as such need no comments. However, it may be made clear that the appointments made vide notification dated 23rd May, 2013 were made without making any consultation with this Court and as such, pursuant to the orders passed on Administrative side by the Hon’ble Chief Justice of Sindh High Court, the notification dated 23rd May, 2013 was withdrawn by the respondent No.1. It may also be clarified that the notification dated 28th May, 2013 regarding appointment of Presiding officers for the Election Tribunals in Sindh, till 30th June, 2014, from the date of assumption of charge of the office, was issued after consultation with/recommendations made in this behalf by the Hon’ble Chief Justice, High Court of Sindh. Such letter dated recommending the names of the Presiding officers for the Election Tribunals was forwarded to the respondent No.1. However, before issuing notification dated 30.06.2014, regarding extension in the term of office of the above said Election Tribunals, no consultation with the office of respondent No.2 has been made by the respondent No1.”         

 

           

7.         The crux of the grievance agitated by the petitioner through the instant petition is in respect of extension in term of office of respondents No.3 and 4 by respondent No.1 vide notification dated 30th June, 2014 is illegal and void ab initio, as the said notification has been issued without consultation of the Hon’ble Chief Justice High Court of Sindh. Learned Standing counsel has placed on record a statement dated 16.10.2014 alongwith certain documents, which includes minutes of Election Commission regarding extension in terms of office of 11 posts of Election Tribunals, which reads as under:-

 

 

“i)        ELECTION TRIBUNALS:

 

It was decided that a reference may be sent to the Finance Division for continuation of 11 posts of Election Tribunals along with their complementary staff province-wise bifurcated as given below:-

 

            1.         Punjab                        05

            2.         Sindh                          02

3.         KPK                            03

4.         Balochistan                01

                        Total               11

 

With regard to term of contract of the Election Tribunals the Hon’ble Commissioner decided that contract of eight Election Tribunlas i.e. five in Punjab Province, two in Sindh Province and one in Balochistan Province, may be extended for a period of six months whereas contract in respect of three Tribunlas in Khyber Pakhtunkhawa Province may be extended for a period of three months only.……..”

 

“…….. In Sindh Province the cases of Election Tribunal Sukkur, after the acceptance of resignation of Mr. Zaheer-ud-Din S Leghari the cases of said Tribunal may be transferred to Election Tribunal Karachi…….”

 

 

8.         Prima facie, it appears from the above quoted minutes of the meeting that a notification was issued by respondent No.1 for continuation of 11 posts of Election Tribunals, five for Punjab, two for Sindh, three for KPK and one for Balochistan. The minutes further shows that the meeting of the Election Commission was attended by Members of the Commission and it was presided by Acting Chief Election Commissioner, who was the then Senior Puisne Judge of Hon’ble Apex Court. It is apparent from the record that the Commission has extended the term of office to only those incumbents for whom the Commission had already sought prior approval/ recommendations from the Hon’ble Chief Justice. Furthermore, the terms and conditions of appointment of contract are very much clear to accord extension in term of office for another one year. Therefore, in our humble view, there is no illegality or material irregularity committed by the respondent No.1 while issuing notification dated 30th June, 2014. So far as the order dated 31.05.2011 passed by the Division Bench of this Court in C.P. No.D-881/2011, which has been placed on record and relied upon by the learned counsel for the petitioner is concerned, it may be observed that the facts and circumstances of that case are distinguishable, as in that case the High Court has recommended two names for the post of Member Judicial Customs Appellate Tribunal but the same have not been considered and the appointment of Mr. Muhammad Arif Moton has been persisted, whereas in the instant case the names of Presiding Officers for the office of Election Tribunal were initially recommended/nominated by the Hon’ble Chief Justice High Court of Sindh and subsequently as per term of contract given six (06) months extension by the Election Commission of Pakistan. Therefore, the cited case has no relevance or applicability in the case in hand.

 

9.         In view of the discussion made above, there is no substance in the instant petition, which is dismissed in-limine along with listed application.

 

 

                                                                                                                        JUDGE

 

 

Karachi;                                                                             JUDGE

Dated:     .10.2014.