HIGH COURT OF SINDH AT KARACHI

C.P. No.D-581 of 2010

 

Present:              Sajjad Ali Shah, J.

               Naimatullah Phuploto, J.

 

Petitioner:                       Rafiq Ahmad Kolachi, through Mrs. Shazia Hanjrah, Advocate.

 

Respondents Nos.1         Aziz ur Rehman, Suresh Kumar, Iqbal

to 4 & 6 :                        Ahmad, Muhammad Kamil Khan and Saeed Ahmad through M/s. Raja Basantani and Irfan Mir Halepoto, Advocate

 

Respondents Nos.10 & 11    Secretary, Sindh Public Service Commission and Government of Sindh through Mr. Sher Muhammad Shaikh, Assistant Advocate General Sindh.

 

Date of hearing:              31.01.2013

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.--        Through this constitutional petition filed on 02.03.2010, petitioner Rafiq Ahmad Kolachi seeks following reliefs:

 

(a)              to declare the petitioner as successful candidate for appointment to the post of D.D.A., BPS-18, by virtue of being declared as successful one in the pre-interview written test whereas the respondent Nos.1 to 7 who are appointed and posted as Deputy District Attorney (DDA), were declared as failure candidates have secured lesser marks than petitioner.

 

(b)             To declare that notification vide its No.S.GENL:1026/2009/1078 Government of Sindh, Law Department, Karachi dated 17th June, 2009 issued by Section Officer (Judicial) for Secretary to Government of Sindh, Law Department and notification vide its No.S.GENL:11-1/2008 Karachi, dated the 21st March, 2009 issued by the Secretary Services, General Administration and Coordination Department, Government of Sindh is illegal, null and void ab-initio, ultra vires, having no lawful use and authority and liable to be set aside based on detailed list of results of respondents No.1 to 7 as annexed in para No.3 of the above facts.

 

(c)              Any other order which this Honourable Court may deem fit and proper, may be passed.

 

(d)             Cost of the suit.

2.       It is the case of the petitioner that he is serving in the District judiciary Ghotki as Reader since last 17 years to the satisfaction of his superiors and he is a law graduate. Petitioner applied for the post of Deputy District Attorney BPS-17, advertised through Public Service Commission, Hyderabad and appeared for the said post vide Roll No.23595 in the written test held by Sindh Public Service Commission on 22.02.2005. Result of the written test was announced and he was declared as successful candidate. He was called for interview vide letter No.PSC/RB-II/S/2467 dated 02.02.2006 to appear in the viva voce schedule to be held on 16.02.2006. The petitioner appeared along with other candidates, result was announced and he was declared as “unsuccessful”. Petitioner has stated that respondents Nos.1 to 7 having less marks than cut marks 47 were found fit and suitable and their names were recommended by Sindh Public Service Commission vide letter dated 24.02.2006 for the post of D.D.A. to Law Department.

 

3.       It is mentioned that fact of tempering was disclosed during the hearing of C.P. No.D-65/2012 Syed Muhammad Mobin Vs. Sindh Public Service Commission filed at Circuit Court Hyderabad.              Mr. Muhamamd Umar Zaur, former Controller of Examination was placed under suspension by the competent authority. The respondents Nos.1 to 7 who had secured less than 47 marks were called for interview by the then Controller of Examinations and recommended respondents Nos.1 to 7 for appointment to the post of D.D.A. News of tempering in result of written test of D.D.A. was published in the newspapers. Press conference was made by the then Chief Minister Sindh, published in daily Kawish dated 12th December 2006. The then Chief Minister recommended the matter to the Governor of Sindh for holding inquiry into the matter. Honourable Mr. Justice Faisal Arab was appointed Inquiry Officer. Inquiry was conducted. On the basis of inquiry report respondents Nos.1 to 7 were placed under suspension. Chief Secretary to Government of Sindh issued show cause notices dated 19.09.2007 to the above named DDAs and they were called upon to furnish the reply to the show cause notice in writing within seven days from the receipt thereof, as to why one or any of the penalties provided in section 3 of the Removal from Service “Special Powers” Sindh Ordinance, 2000 should not be imposed upon them. The said show cause notices were challenged by the respondents Nos.1 to 7 by filing C.P. No.1182/2008. This Court by consent vide order dated 24.04.2009 disposed of the petition directing that inquiry will be conducted within the period of three months from the date of the order and in case the same is not conducted within this period the petitioners will automatically become entitled to function as DDAs at their respective posting places, already assigned to them. It is further stated that during the pendency of the inquiry, Notification dated 21.03.2009 was issued by the law department and DDAs were assigned the posting places. Petitioner has further stated that acts and conduct of the respondents No.8 and 9 clearly show malafide on their part, despite expiry of three months inquiry report has not been submitted and the respondents No.1 to 7 are holding their offices without any lawful authority.

 

4.       Notices were issued to the respondents as well as Advocate General Sindh.

 

5.       Parawise comments have been filed by Secretary, Sindh Public Service Commission, in which it is stated that act of tempering in the result of respondents Nos.1 to 7 was solely act of Mr. Muhammad Umar Zaur, the then Controller of Examination, Sindh Public Service Commission.

 

6.       Respondent No.3 in the parawise comments has stated that Sindh Public Service Commission by adopting the proper procedure recommended his name for the post of DDA, allegation of tempering in the result of written test was baseless. Honourable Mr. Justice Faisal Arab and Dr. Riaz Ahmad Memon have conducted separate inquiries into the matter and respondent No.3 has been exonerated in the inquiry conducted by Dr. Riaz Ahmad Memon. Remaining respondents have also denied their involvement in tempering in the result of written test. Plea has been raised that inquiry conducted by Honourable Mr. Justice Faisal Arab was against respondent No.5. All other allegations have been denied, petitioner is not aggrieved person and it is prayed that constitution petition is not maintainable in service matter and the same is liable to be dismissed.

 

7.       Ms. Shazia Hanjrah, counsel for the petitioner contended that respondents no.s.1 to 7 had failed in the written test. The then Controller of Examinations tempered result and these respondents were declared successful candidates in the written test. Honourable Mr. Justice Faisal Arab conducted judicial inquiry into matter and recorded finding that it was case of tempering with the result. Respondents Nos.1 to 7 had secured less than 47 marks. Learned counsel for the petitioner further contended that despite inquiry conducted by Honourable Judge of the High Court, the official respondents had posted them as D.D.A. at various places. Ms. Shazia submitted that in C.P.No.D-1182/2008 the fact of judicial inquiry was suppressed form the Court and obtained order dated 24.04.2009. It is further submitted that this Court in exercise of its writ jurisdiction is competent to inquire from the respondents Nos.1 to 7 that under what authority they are holding office of DDA and impugned notifications may be declared as illegal, without any lawful authority. Lastly, counsel for the petitioner argued that the petitioner qualified the written test, he may be declared as successful candidate for the post of D.D.A.

 

8.       M/s. Raza Basantani and Irfan Mir Halepoto, advocates for respondents Nos.1 to 4 and 6 argued that constitution petition is not maintainable as the petitioner had an alternate remedy by way of approaching the Sindh Service Tribunal, as matter pertains to the appointment of the respondents as DDAs in the Law Department, which is one of the terms and conditions of civil service and High Court has no jurisdiction to adjudicate upon the matter. It is further argued that after judicial inquiry another inquiry into the matter was conducted by Dr. Riaz Ahmad Memon, in which concerned respondents were exonerated, no action has been suggested against them. Lastly, it is submitted that respondents No.1 to 7 are serving as DDAs since 2006, they have acquired sufficient experience in the relevant field. The petitioner is not an aggrieved person and constitution petition is not maintainable under the law.

 

9.       Ms. Amna Khanum Ansari, Intervenor, argued that she had appeared in written test but on account of tempering with marks by the then Controller of Examinations she was declared unsuccessful in the viva voce result and failure respondents Nos.1 to 7 were declared as successful candidates and their names were recommended to Law Department for appointment to the post of D.D.A.

 

10.     Mr. Sher Muhammad Shaikh, Additional Advocate General Sindh assisted by Mr. Iqbal Hussain Durrani, Secretary Services, argued that in the second inquiry, conducted by Dr. Riaz Ahmad Memon, the respondents have been exonerated from the allegations mainly on the ground that in the judicial inquiry action was not suggested.  

 

11.     We have given anxious consideration to the arguments of the learned counsel for the parties, perused the relevant record, inquiry reports conducted by the Honourable Mr. Justice Faisal Arab and        Dr. Riaz Ahmad Memon in the matter.

 

12.     Before dilating upon the merits of the petition, we deem it appropriate to first decide the question of jurisdiction and maintainability of the petition filed before this Court.                 

 

13.     We are not persuaded to agree with the contention of M/s. Raja Basantani and Irfan Mir Halepoto counsel for respondents Nos.1, 2, 3, 4 and 6 that Petitioner Rafiq Ahmad had an alternate remedy by way of approaching the Sindh Service Tribunal and that since the matter pertains to the appointment of respondents Nos.1 to 7, which is one of the terms and conditions of the civil service, therefore, this Court has no jurisdiction to adjudicate upon the matter.

 

14.     Under article 199(2)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the High Court in exercise of its writ jurisdiction is competent to enquire from a person, that by what authority he is holding the office and in such cases, a writ of quo-warranto is maintainable. This question has been resolved by the Honourable Supreme Court in the case of Captain (Retd.) Muhammad Naseem Hijazi vs. Province of Punjab (2000 SCMR 1720), Masoodul Hassan vs. Khadim Hussain (PLD 1963 SC 203) and in case of Abdul Bashir and others vs. Government of Balochistan (2001 PLC (C.S) 771).

 

15.     In the case of Captain (Retd.) Muhammad Naseem Hijazi (2000 SCMR 1720) it has been observed as under:-

 

“Under Article 199(2)(b)(ii) of the Constitution of Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from a person; holder of a public office to call upon him to show that under what authority he is holding the said office. In such like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to the Masood ul Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquiry by what authority he supported his claim in order that right to office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature. Similarly in the case of M.U.A. Khan v. Rana Muhammad Sultan and other (PLD 1974 SC 228) this Court held that writ of quo warranto could be moved by ‘any person who even may not be an aggrieved party but is holding a public office created by character or statute by the State’. Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir i.e. Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S) 289).

 

In the view of above legal position, we are of the view that any person can move this Court to challenge the unauthorized occupation of a public office, on such application, this Court has not only to see that the incumbent is holding the office under the order of a competent Authority but it may go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office. This Court has also to see if statutory provisions have been violated in making the appointment.

 

16.     Reverting to the contention of the respondents Nos.1 to 4 and 6 that no tempering was made in the written test result and they have been validly appointed as DDAs by Sindh Public Service Commission as per Rules and they have been exonerated in the inquiry conducted by Dr. Riaz Ahmad Memon.

 

17.     In this matter, judicial enquiry was conducted by Honourable   Mr. Justice Faisal Arab. The inquiry report dated 07.04.2007 reveals that after receipt of award list from Examiner, Mr. Muhammad Umer Zaur determined 47 marks as minimum qualifying marks in order to pick 69 most qualified candidates for viva voce. It is clearly mentioned in report that 25 candidates including the respondents Nos.1 to 7 had secured less than 47 marks but they were selected for viva voce, the details as mentioned in the report are as under:

 

Sr. No.

Roll No. of Candidate

Code No. on Answer Sheet

Name and Father’s name of Candidate

Secured Marks

1.

23018

9186

Aziz ur Rehman S/o Abdul Rehman Shaikh

10

3.

23028

9196

Iqbal Ahmad S/o Muhammad Hussain Solangi

25

9.

23235

9033

Farrukh Raza S/O Mirza Baig

41

10.

23277

9073

Muhammad Kamil Khan S/o Muhammad Bashir Khan

46

13.

23304

9099

Saeed Ahmad S/o Shamsuddin Memon

33

15.

23321

9115

Suresh Kumar S/o Soomardas Parmani

23

19.

23556

9317

Syeda Julye Zaidi D/o Syed Akhtar Hussain

39

 

18.     Consequent upon inquiry report, show cause notices were issued to the respondents Nos.1 to 7. Respondents filed C.P.No.D-1182/2008 this Court was pleased to dispose of petition by order dated 24.4.2009 as follows:-

                   “24.04.2009

                             Mr. Gohar Iqbal, Advocate for the Petitioners.

                             Mr. Adnan Karim, AAG for the Respondent.

                                                -------------------

By consent this petition as well as listed application is disposed of as follows:-

 

The petitioners who have been appointed as Deputy District Attorney (DDA), there cases of appointment are in enquiry and for some period they were suspended from working in their respective posts. The enquiry is stated to be on its last leg but still no definite period can be spelled out during which the enquiry is to be concluded.

 

The enquiry will now be concluded within a period of three months from the date of this order and in case the enquiry is not concluded within this period, the petitioner will automatically become entitle to function as DDA at their respective posting which has already been assigned to them.”

 

19.     It appears that Law Department, Government of Sindh has already on 21st March 2009 issued notification and reinstated respondents Nos.1 to 7. Beside, perusal of above reproduced order of this Court reflects that it was not brought to the notice of the learned Bench that Honourable Judge of this Court had already inquired into the matter and had submitted his report that the above respondents could not pass the written test. Additionally, the above order did not finally decide the eligibility of the respondents to hold the positions and only catered for indefinite suspension of the respondents. At the time of arguments learned counsel for the respondents Nos.1 to 4 and 6 were enquired to show by what authority they are holding offices of DDA. Respondents Nos.1 to 7 had no satisfactory reply. The report of Honourable Judge of this Court clearly shows that there was tempering in the result of the written test and failed candidates were called for viva voce only on account of the manipulated list prepared by Mr. Umer Zaur, the then Controller of Examinations of Sindh Public Service Commission. Question of procuring employment of DDA on the basis of fraud/manipulation in the written test marks has already been determined in the judicial inquiry. Respondents Nos.1 to 7 have no legitimacy to hold the present posts on the basis of invalid appointments. Subsequent, inquiry conducted by    Dr. Riaz Ahmad Memon by which Respondents Nos. 1 to 7 were exonerated was illegal, having no lawful authority or mandate. It is high time, that recommendations contained in the judicial inquiry report should be implemented in letter and spirit, which are reproduced as under:

(a)              After receipt of result sheet from the Examiner, containing coded numbers and marks secured by all candidates in the written test, the Controller of Examinations should under his signature prepare a list of candidates who had qualified for being called for viva voce. This list should contain both coded and original roll numbers of each candidate selected for viva voce and the minimum qualifying marks.

 

(b)             The Chairman or any other member of the Commission should cross-check the list prepared by the Controller of Examinations with the Examiner’s Award List in order to avoid intentional manipulation or unintentional omission either in the selection of a qualified candidate or in the determination of the minimum qualifying marks. The press release for calling candidates for viva voce is to be issued only after the exercise of cross-checking has been conducted.

 

(c)              The copies of the Examiner’s Award List and the list of candidates qualified in the written test shall at all times be made available for inspection by any candidates who wish to do so in order to maintain transparency.”

 

20.     For above stated reasons, we have come to the conclusion that initial appointment of respondents Nos.1 to 7 as D.D.A. was illegal, on extraneous consideration, consequently, impugned Notifications Nos.S.GENL:11-1/2008 Karachi, dated the 21st March, 2009 and No.SOIII(S&GAD)3-180/2007, Government of Sindh, Services, General Administration & Coordination Department, Karachi dated 9th March 2009, are declared to be illegal, null and void, without lawful authority and of no consequence. Consequently, Respondents Nos.1 to 7 shall be removed from service forthwith.

 

21.     Let copy of this judgment be sent to the Chief Secretary, Government of Sindh, for compliance within 15 days, under intimation to this Court.

 

          Consequently, petition is accordingly disposed of.

 

                                                                                      JUDGE

 

                                                                   JUDGE 

Karachi, dated

Feb. ___ 2013

 

Gulsher/PA