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ORDER SHEET in the HIGH COURT of SINDH, KARACHI C.P No.D

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ORDER SHEET IN THE HIGH COURT OF SINDH, KARACHI C.P No.D-6737 of 2015 Present Mr. Justice Muhammad Ali Mazhar Mr. Justice Anwar Hussain Sohail Baig Noori ……….. Petitioner Versus The High Court of Sindh through Registrar & others …....... Respondents Dates of hearing: 19.02.2016, 26.02.2016, 04.03.2016, 21.03.2016 & 28.03.2016. Mr. Abdul Abid Advocate for the Petitioner. Mr.Sohail Baig Noorie, Petitioner is also present. Mr. Salahuddin Ahmed, Amicus Curiae. Mr.Ghulam Mustufa Memon, Registrar, Sindh High Court. Mr.Sibtain Mehmood, A.A.G. …..……… Muhammad Ali Mazhar J. This petition of quo warranto has been brought to challenge the appointment of respondent No.2 as Chairman Inspection Team (C.I.T), Sindh High Court Establishment. 2. The petitioner is by profession an advocate. He is also convener of Justice Lawyers Front (J.L.F), Karachi. He argued in person that the respondent No.2 was elevated as judge of this court on the advice of then Chief Justice of Pakistan Mr. Justice Abdul Hameed Dogar. He referred to the judgment reported in PLD 2009 S.C 789 and further argued that in view of the dictum laid down in the 2 [C.P.NO.D-6737/2015] aforesaid judgment by the apex court, the respondent No.2 is not a retired Judge of this court. He was initially appointed on contract basis as Chairman Inspection Team vide Notification dated 30.07.2015 on up-gradation of the post of M.I.T-I but subsequently, he was also allowed to officiate as Registrar of this court as a former Judge of the High Court which amounts to contempt of the hon’ble Supreme Court. So far as the merits of the case are concerned, he argued that the appointment of the respondent No.2 on contract basis is sheer violation of the judgment of the hon’ble Supreme Court passed in Criminal Original Petition No.89 of 2011. The appointment of respondent No.2 on contract basis is also clear-cut violation of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 which clearly provides that the post of M.I.T should be filled by transfer/promotion amongst senior most District & Sessions Judges. The respondent No.2 was retired from the post of District & Sessions Judge so he cannot be appointed on contract basis. He further argued that the Notification for the appointment of respondent No.2 clearly indicates that in order to accommodate him, the post of Chairman Inspect Team was created which could not be done under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 without the concurrence of the Administration Committee. He moved an application to the hon’ble Chief Justice of this court against the appointment of the respondent No.2 but no action was taken. The up-gradation and creation of new post under the guise of change of nomenclature was a person specific to accommodate the Respondent No.2 alone which is not permissible. The appointment on contract basis creates frustration amongst the existing employees for the simple reason that their venue of promotion or progression may be blocked. The petitioner 3 [C.P.NO.D-6737/2015] argued that in the writ of quo warranto, the bar contained under Article 199 (5) of Constitution does not apply. The petitioner also referred to Suo Moto case No.24 of 2010 decided by the hon’ble Supreme Court and along with statement, he produced at least three orders issued by the Registrar of this court on 01.02.2011, whereby, the contracts of three employees were terminated in pursuance of the order passed by the hon’ble Supreme Court in Suo Moto case No. 24 of 2010. He robustly argued that on one hand, the engagement of contractual employees were terminated in the year 2011 on the basis of dictum laid down by hon’ble Supreme Court but again in 2015, the Chairman Inspection Team has been appointed on contract basis which is sheer violation of the Apex Court’s judgment. In order to meet the office objection, learned counsel referred to 2010 S.C.M.R 632 and an unreported order passed by the hon’ble Supreme court on 06.01.2016 in Civil Appeal No.169-K to 177-K of 2011. 3. Mr. Salahuddin Ahmed, learned Amicus Curiae argued that the post of Member Inspection Team is a public office. The note of the then Registrar dated 27.07.2015 attached with the counter affidavit of the respondent No.2 clearly indicates that in order to improve the working of district judiciary, a proposal was given to the hon’ble Chief Justice of this court to upgrade the post of Member Inspect Team to B.P.S-22 with change of its nomenclature as Chairman Inspect Team with direct reporting line to the Chief Justice and Senior Pusine Judge. In the same note further proposal was given that offer of appointment may be given to respondent No.2 to assume the charge of this post in order to improve the working of district judiciary. It is further stated in the same note that the functions and assignments be undertaken by Inspection Team will be 4 [C.P.NO.D-6737/2015] decided after discussion with respondent No.2 once he assumes the charge of the post. He further argued that the proposal floated for the up-gradation and changing the nomenclature clearly indicates that it is not merely a change of nomenclature or up-gradation but it amounts to creation of new post on account of reorganization and restructuring the Inspection Team Department of this court. He referred to Rule 4 of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 and argued that though in this Rule, the Chief Justice may create or abolish, upgrade and downgrade the post temporary or permanent but the post in pay scale 16 or above may be created or abolished with the concurrence of the Administration Committee. He also referred to methods of appointment provided under Rule 5 which includes direct recruitment, by promotion, by posting the judicial officer and in case of no suitable person available for appointment in clause (a) to (c), then a person may be appointed on contract for a period not exceeding three years on such terms and conditions as may be laid down in contract of appointment. He argued that before appointing any person on contract, it was to be judged first whether any other suitable person is available for appointment to the post or not. The note placed before the Chief Justice by the then Registrar does not show any exigency that offer was made to the respondent No.2 due to non-availability of any suitable person for the appointment. Another limb of the argument was that the creation of post of Chairman Inspect Team after its up- gradation in B.P.S-22 could not be done without concurrence of the Administration Committee. Keeping in view the available record including the comments of respondent No.2 & 3 nothing has been brought forwarded for the consumption of this court to see whether any concurrence was obtained from the Administration 5 [C.P.NO.D-6737/2015] Committee or not on the appointment in issue. He also shown us office order dated 12.02.2007 issued under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006, whereby, with the concurrence of the member of Administration Committee of this court, the Chief Justice was pleased to create post of M.I.T-II in B.S-20 earlier. He also referred to Rule 3 of the Rules, 2006 and argued that the strength of persons/employees holding post in this court are specifically mentioned in part-I and part-II of the Schedule appended to the Rules. The post of Registrar is provided at Serial No.1 of the Rules while the second entry is for M.I.T. First of all no amendment was made in the Schedule of the Rules which is an integral part of the Rules and if it is assumed that the post of M.I.T-I has been upgraded in B.P.S-22 with the change of nomenclature of Chairman Inspection Team even then no direct appointment on contract basis could have been made but the post could be filled only by transfer of one of the senior District Judges serving under the High Court or by promotion the officer of the High Court serving in BPS-19 on regular basis provided he is a law graduate. It was further contended that time and again the Apex Court deprecated the appointments of the retired persons on contract basis, he referred to an order passed by the Apex Court in Suo Moto case No.24 of 2010 due to which at least the contract of three employees of this court were terminated. So far as the niceties of Article 199 (5) of the Constitution is concerned, learned amicus curiae also relied upon the case reported in 2000 S.C.M.R 632 and an unreported order passed by the Apex Court in Civil Appeal No.169-K to 177-K of 2011. He further argued that the terms of engagement unequivocally show that the respondent No.2 is holding a public office. Under Article 203 of the Constitution, 1973, this court has to supervise and control 6 [C.P.NO.D-6737/2015] all courts subordinate to it and to ensure that the subordinate courts are functioning honestly, efficiently and in the public interest.
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