Order Sheet
IN THE HIGH COURT OF SINDH at Karachi
Constitutional Petition No. D – 6431 of 2019
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Date |
Order with signature of Judge |
Before:
Mr. Justice Nadeem Akhtar
Mr. Justice Adnan-ul-Karim Memon
Mr. Ghulam Sarwar Chandio, advocate for the petitioner.
Mr. Hakim Ali Shaikh, Additional Advocate General Sindh.
G. M. Umer Farooq, Secretary, Provincial Assembly of Sindh
and Muhammad Khan Rind, Sr. Special Secretary, Provincial
Assembly of Sindh.
Date of hearing : 16.03.2020 Date of order : 07.04.2020
O r d e r
NADEEM AKHTAR, J. – Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has impugned the absorption / appointment of respondent No.7 as Senior Translator (BPS-16) in Provincial Assembly of Sindh vide notification dated 01.03.2011.
2. In response to the notice issued by this Court, respondent No.4 / Secretary Provincial Assembly of Sindh, respondent No.5 / Senior Special Secretary Provincial Assembly of Sindh, and respondent No.7 / Senior Translator Provincial Assembly of Sindh, whose absorption / appointment has been impugned herein, are present. Respondent No.4 has filed comments / statement dated 16.03.2020 along with copies of relevant documents in order to justify the impugned absorption / appointment of respondent No.7.
3. Relevant facts of the case that have emerged from the petition, documents filed therewith and the comments and documents filed by respondent No.4, are as under :
(i) Respondent No.7 was working as a Junior School Teacher in BPS-9 in the Education and Literacy Department of Government of Sindh. Vide impugned notification dated 01.03.2011 (page 57), he was absorbed / appointed as Senior Translator in BPS-16 in the Provincial Assembly of Sindh with immediate effect.
(ii) It was stated in the impugned notification that respondent No.7 was working on detailment basis in the Secretariat of the Provincial Assembly of Sindh, and his above absorption / appointment was made on the recommendation of the Selection Committee and in pursuance of decision / approval of the Finance Committee of the said Secretariat, and also with the concurrence of the Finance Department of Government of Sindh.
(iii) Vide order dated 04.01.2016 (page 59) issued by respondent No.4, six persons, including respondent No.7, working in the Provincial Assembly of Sindh were relieved with immediate effect and were repatriated to their respective parent departments, with direction to report there at the posts held by them prior to their absorption / appointment in the Provincial Assembly of Sindh. It was stated in the above order that it was issued in compliance of orders dated 12.06.2011 and 05.01.2015 passed by the Hon’ble Supreme Court in Criminal Original Petition No.89/2011 and Civil Review Petition No.193/2013, respectively.
(iv) In pursuance of the above order of repatriation, respondent No.7 submitted his joining report (page 63) to the Secretary of his parent department i.e. the Education and Literacy Department of Government of Sindh, requesting the latter to allow him to join his duties in the said department.
(v) It appears that meanwhile respondent No.7 preferred an appeal against his repatriation, which was purportedly accepted as per the notification dated 17.10.2018 issued by respondent No.4. According to this notification, copy whereof has been filed by respondent No.4, respondent No.7 had relinquished the post of Senior Translator mistakenly, therefore, his appeal was accepted and on the recommendation of the Fact Finding Committee he was allowed by the “competent authority” to join his duties with effect from the date when he was relieved i.e. 04.01.2016 with salary and other allowances.
(vi) It is in the above background that respondent No.7 is still holding the post of Senior Translator in the Provincial Assembly of Sindh and is enjoying hefty gross salary and allowances of Rs.883,944.00 per month according to the pay slips (pages 65 and 67) filed by the petitioner. However, as per the statement filed by respondent No.4, respondent No.7 is drawing a lesser amount on account of monthly salary.
4. The main argument advanced on behalf of the petitioner is that the purported absorption / appointment of respondent No.7 as Senior Translator (BPS-16) in the Provincial Assembly of Sindh was/is against the landmark judgment pronounced by the Hon’ble Supreme Court of Pakistan in Criminal Original Petition No.89/2011 reported as 2013 SCMR 1752, whereby absorption of employees in different cadres was declared as illegal and they were ordered to be reverted to their respective parent departments. It is contended that respondent No.7 is still holding the post of BPS-16 in violation of the law laid down by the Hon’ble Supreme Court in the above-cited authority as well as in the case of Ali Azhar Khan Baloch and others V/S Province of Sindh and others, 2015 SCMR 456. It is further contended that in any event, respondent No.7, who was a Junior School Teacher (BPS-9) in the Education Department of Government of Sindh, could not have been absorbed / appointed in BPS-16 in the Provincial Assembly of Sindh.
5. By referring to the statement dated 16.3.2020 filed today by respondent No.4 / Secretary Provincial Assembly of Sindh, it is contended by learned AAG that respondent No.7 was absorbed / appointed against a newly created post of Senior Translator in BPS-16 in the Provincial Assembly of Sindh, therefore, the above authorities of the Honorable Supreme Court are not attracted in the instant case. Learned AAG was unable to show us any provision of law whereby a Junior School Teacher in BPS-9 of the Education Department of Government of Sindh can be absorbed / appointed against the post of Senior Translator in BPS-16 in the Provincial Assembly of Sindh, which falls in a different cadre.
6. Respondents 4 and 5, the Secretary and Senior Special Secretary, respectively, of the Provincial Assembly of Sindh, have simply relied upon the statement and documents filed by respondent No.4. It is conceded by them and also by respondent No.7 that the latter never approached the Hon’ble Supreme Court seeking review or clarification that his case does not fall within the law laid down by the Hon’ble Supreme Court and or he was not liable to be repatriated. Paragraphs 3 to 6 of the statement filed today by respondent No.4 read as under :
“3.That in pursuance of letter No.SO(HRC)/SGA&CD)/17(Misc-XII) 2015 dated 8th December, 2015 issued by SGA&CD for compliance (!) the Order of Hon’ble Supreme Court to repatriate the (!) those employees who are working in this Secretariat on detailment etc., the Secretariat of Provincial Assembly of Sindh vide Order No.PAS/Admn/Gen-2/2016/2594-A dated 04th January, 2016 (!) the Respondent No.7 with other employees to their parent departments. Copy of order dated 04.01.2016 is filed & marked as annexure ‘B’.
4. That the name of Respondent No.7 was inadvertently included in the said Order dt. 04-01-2016. Respondent No.7 later-on pointed (!) the bonafide mistake of the Department through his departmental Appeal. The Fact Finding Committee of Provincial Assembly of Sindh after going through the Appeal and relevant evidence of Respondent No.7 came to the conclusion that his repatriation was an inadvertent / bonafide mistake of the department, hence, recommended his re-joining in Provincial Assembly of Sindh. The Provincial Assembly of Sindh on the basis of Recommendation of Fact Finding Committee issued Notification No.PAS/PF-05/2011/4377 dated 17th October, 2018 and allowed Respondent No.7 to join his duties. Copy of Notification dated 17th October 2018 is filed & marked as annexure ‘C’.
5. That Respondent No.7 has received salary from the month of July, 2018 till February, 2020. The break-up of salary is annexure herewith as annexure ‘D’.
6. That Respondent No.7 was appointed against newly created post of Sr. Translator (BPS-16), hence, the Order of Hon’ble Supreme Court of Pakistan has not been violated.” (emphasis added).
7. Respondent No.7, who is present in person, concedes that his parent department was/is the Education and Literacy Department of the Government of Sindh ; before his absorption / appointment in BPS-16 in the Provincial Assembly of Sindh, he was serving in the Education Department as a Junior School Teacher in BPS-9 ; he was absorbed / appointed in the Provincial Assembly of Sindh on detailment basis as Senior Translator in BPS-16 ; and, he was repatriated / relieved to report to his parent department at the post held by him before his absorption. He, however, insists that his absorption / appointment in BPS-16 in the Provincial Assembly of Sindh was proper and legal and as such he was not liable to be repatriated to his parent department. He states that due to this reason he filed an appeal against his repatriation which was allowed by the competent authority. According to him, in view of the said decision of the competent authority, he was/is fully justified and entitled to retain the subject post of Senior Translator in BPS-16.
8. The order dated 04.01.2016 issued by respondent No.4, whereby respondent No.7 was repatriated to his parent department, states that the same was issued in compliance of orders dated 12.06.2011 and 05.01.2015 passed by the Hon’ble Supreme Court in Criminal Original Petition No.89/2011 and Civil Review Petition No.193/2013, respectively. This clearly shows that the position that the absorption / appointment of respondent No.7 was illegal and he was liable to be repatriated to his parent department, came to the knowledge of the respondents on 12.06.2011 when the first order was passed by the Hon’ble Supreme Court. In spite of becoming fully aware of this position, the respondents retained the services of respondent No.7 illegally and did not repatriate him to his parent department for about four and a half (4½) years after passing of the first order on 12.06.2011 by the Hon’ble Supreme Court and even after one year of the second order dated 05.01.2015 passed by the Hon’ble Supreme Court ; and, he was very reluctantly repatriated vide order dated 04.01.2016. However, under the garb of a purported decision by the competent authority on the respondent No.7’s appeal, he was allowed vide notification dated 17.10.2018 to join his duties at the same post with effect from the date when he was relieved i.e. 04.01.2016.
9. The notification dated 17.10.2018 issued by respondent No.4, whereby the repatriation of respondent No.7 was recalled and he was allowed on the purported recommendation of the Fact Finding Committee to join his duties with effect from the date of his relieving, states that he had relinquished the post of Senior Translator mistakenly. In the above-quoted paragraph 4 of his statement, respondent No.4 has stated that the name of respondent No.7 was inadvertently included in the repatriation order dated 04.01.2016 which mistake was later on pointed out by respondent No.7 through his appeal, whereafter the Fact Finding Committee came to the conclusion that his repatriation was an inadvertent / bonafide mistake. We have noticed that the aforesaid notification dated 17.10.2018 as well as the above statement of respondent No.4 are silent with regard to the nature and or details of the alleged mistake in the repatriation of respondent No.7. We are of the firm view that after the above mentioned orders passed by the Hon’ble Supreme Court, respondent No.7 had no right whatsoever to file an appeal against his repatriation, as his repatriation was admittedly ordered in compliance of the orders of the Hon’ble Supreme Court ; and, likewise, the Fact Finding Committee and/or the competent authority had no jurisdiction to entertain or allow the appeal of respondent No.7. It may be noted that the notification of repatriation of respondent No.7 itself shows that the orders of the Hon’ble Supreme Court were acted upon and he was actually repatriated to his parent department. Therefore, the respondent No.7’s appeal against his repatriation was misconceived, unjustified and not maintainable, and accordingly the decision thereon by the Fact Finding Committee was void ab initio.
10. The stance taken by the respondents that respondent No.7 was absorbed / appointed against a newly created post of Senior Translator is, on the face of it, misleading and malafide, as the above mentioned Rules framed as far back as in the year 1975 specifically provide the qualification and mode of appointment of Senior Translator. Under the said Rules, only such candidate can be recruited / appointed for the said post who has a degree from a recognized university in Arabic, Persian or Urdu as one of the subjects in the case of an Urdu Translator, or a degree from a recognized university in Sindhi as one of the subjects in case of a Sindhi Translator ; or he may be promoted from amongst the members of the service holding posts of Junior Translators with experience of at least three years. The above criteria prescribed by the Rules shows that respondent No.7 was not eligible for the post of Senior Translator.
11. In any event, respondent No.7 could not be absorbed / appointed against a post of different cadre as it is well-settled that Junior School Teacher BPS-9 cannot be absorbed in another cadre in view of Ali Azhar Khan Baloch (supra). Moreover, if the contention of the respondents that respondent No.7 was appointed against a newly created post, which contention is not correct and has already been rejected, is accepted for the sake of argument, even such appointment was in violation of Rule 10 of The Sindh Assembly Secretariat (Appointment, Promotion and Transfer) Rules, 1975, which provides that initial appointments to the posts in grades 5 to 16 shall be made only after advertisement in newspapers, which was admittedly not followed in the instant case.
12. The above discussion leads us to an irresistible conclusion that the absorption / appointment of respondent No.7 as Senior Translator in BPS-16 in the Provincial Assembly of Sindh was void ab initio ; and, the impugned notification dated 01.03.2011 as well as the notification dated 17.10.2018 issued by respondent No.4, being without lawful authority and of no legal effect, are hereby set aside. All the respondents, including respondent No.2 / Chief Secretary Sindh and respondent No.4 / the Secretary and competent authority of the Provincial Assembly of Sindh, are hereby jointly and severally directed to ensure that the law laid down by the Hon'ble Supreme Court is implemented in letter and spirit and respondent No.7 is repatriated forthwith to his parent department. The notification in this behalf must be issued immediately and be placed before this Court on the next date of hearing.
13. Since the absorption / appointment of respondent No.7 was void ab initio as held above, he shall be deemed to have served as a Junior School Teacher in BPS-9 in the Education and Literacy Department of the Government of Sindh throughout the period as if he was never absorbed / appointed in the Provincial Assembly of Sindh, and he shall be entitled to salary during the entire said period only as per his pay scale. However, if his batch mates have been promoted during the said period, he shall also be entitled to the same treatment with seniority and other benefits in accordance with law.
14. In view of the above, respondent No.7 is liable to return the entire amount received by him during the entire said period towards differential in the pay scales of BPS-9 and BPS-16, and respondents are duty-bound to recover such amount from him and to deposit the same in the Government exchequer. The Secretary Education and Literacy Department Government of Sindh, respondent No.3 / Secretary Finance Department Government of Sindh, respondent No.4 / Secretary Provincial Assembly of Sindh and respondent No.6 / Accountant General Sindh, are jointly and severally directed to calculate the differential amount recoverable from respondent No.7 and to submit a statement in this behalf before this Court on the next date of hearing.
15. Prima facie, the respondents have disobeyed and violated the orders of the Hon’ble Supreme Court. Issue show cause notice to respondents 1, 2, 4 and 5 to show cause why proceedings should not be initiated against them for committing willful and deliberate contempt of the orders of the Hon’ble Supreme Court. They are directed to submit their reply to the show cause notice on or before the next date of hearing.
16. Respondents 4 and 5 are directed to submit before this Court on the next date hearing a list of all such employees of the Provincial Assembly of Sindh who were absorbed / appointed at any post and are still holding such post, and also the notification of repatriation of respondent No.7 to his parent department.
Issue notice to all the respondents as well as to learned Advocate General Sindh for compliance. To come up on 22.04.2020 at 11:00 a.m. when respondents 4 and 5 shall be in attendance.
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