Dr M.H Mughal (Khi To Hyd) (Petitioner) VS P.O Sindh & Other (Respondent)

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD

C.P. No. D- 347 of 2020

Before:

Mr. Justice Abdul Maalik Gaddi Mr. Justice Adnan-ul-Karim Memon

Dr. M.H. Mughal ---------- Petitioner

VERSUS

Province of Sindh & another ---------- Respondents

For hearing of MA No. 4738 of 2020

Date of hearing : 06.10.2020 Date of Decision : 08.10.2020

Petitioner present in person Mr. Kamaluddin, Advocate along with alleged contemnors Mr. Allah Bachayo Soomro Additional Advocate General

ORDER

ADNAN-UL-KARIM MEMON, J. - The captioned Petition was disposed of vide order dated 13.08.2020 in the following terms:-

1.Basically, by means of this petition, the Petitioner is seeking direction to the Respondent-University to implement the order dated 24.9.2019 passed by the Chancellor/Governor Sindh and fix his pay and pension in BPS-21. Petitioner has averred that he stood retired from service of Respondent- University vide office order dated 28.12.2010. Petitioner added that on 16.9.2019 he made an application to Respondents for implementation of the aforesaid order but to no avail. The petitioner being aggrieved by and dissatisfied with the non-action on the part of the Respondent-University has filed the instant Petition.

2.Petitioner who is present in person has submitted that he is entitled to pensionary benefits of BPS-21 under hardship cases, as ordered by Respondent No.1 but Respondent No.2 has unfairly and with malafide intention has failed to implement the order of Respondent No.1. He emphasized that he fulfills all the criteria as enumerated in the pension Rules of Respondent-University.

3.In principle Mr. Kamaluddin learned counsel representing the Respondent- University has accepted the stance of the petitioner by submitting that the instant matter needs to be referred to Syndicate of Respondent- University, however, he laid emphasis on the legal position of the case that worthy Governor is not competent to direct Respondent-University as the powers have already been taken over by the Worthy Chief Minister under Sindh University Act, 2018; that the order of Governor Sindh dated 24.9.2019 is Corum-non-judice; that the resolution passed by Selection Board on 27.1.2011 and Syndicate on 26/27.3.2011 did not recommend the petitioner in BPS-21 and petitioner failed to challenge the same before the competent authority.

4.In rebuttal, the Petitioner has submitted that the order of hardship scheme of pension has been passed by the Governor of Sindh / Chancellor of Public / Government Universities in Sindh before the amendment of Sindh Universities Act and the said order has been passed under hardship case.

5.We have heard the petitioner who is present in person and learned Counsel representing Respondent-University and perused the entire material available on record.

6.This is a matter of grave concern that for several years, the long and unjustified delay in the payment of pension has been a source of tremendous hardship and humiliation to retiring officials and their families. Despite the strictures and orders passed by the Honorable Supreme Court of Pakistan in its various pronouncements and simplified guidelines laid down by the Government, petitions on account of delay persist. Prima-facie, the claim of the Petitioner is admitted by the Respondent-University on the basis of expert opinion rendered by Dr. Anwar Ali Shah Professor Emeritus on

7.In the given circumstances, instead of traveling into the merits of the case, the petitioner since has retired in the year 2010 we are constrained to direct the competent authority of Respondent-University to take a fresh decision in view of the expert opinion rendered by Dr. Anwar Ali Shah Professor Emeritus on 11.7.2019 and pay all his perks and privileges to which he was entitled to under the law within [one] month and report compliance through Additional Registrar of this court.

8.The instant Petition stands disposed of in the above terms.

2.On 15.09.2020 applicant filed an application under Section 3 & 4 of the Contempt of Court Ordinance 2003 (MA No. 4738 of 2020) for initiation of contempt proceedings against the alleged contemnors on account of their willful, intentional and deliberate act of disobeying the above-mentioned order passed by this Court.

3.The applicant present in person has submitted that despite clear directions in the above said Order, the contemnors have not complied with the same. He lastly prayed for direction to the alleged contemnors to pay him all his perks and privileges to which he was/is entitled under the law in view of the expert opinion rendered by Dr. Anwar Ali Shah Professor Emeritus on 11.7.2019, in compliance of the orders passed by this Court in the present matter.

4.Notices were issued to the alleged contemnors and in reply Ghulam Muhammad Bhutto, Registrar, University of Sindh, Jamshoro filed Counter Affidavit for himself and on behalf of Acting Vice-Chancellor, University of Sindh, Jamshoro being his attorney. In the Counter Affidavit, it has been stated that when the above order dated 13.8.2020 was passed neither he was Registrar nor Contemnor No.1 was the Vice-Chancellor of the University of Sindh and the above order came to their knowledge for the first time when they received notice of contempt application. He further stated that on inquiry from the office he came to know that the case papers of the petitioner are ready and as soon as the Syndicate meeting is held, his case will be put up

on a priority basis to comply with the direction of this court. He further stated that unless a permanent Vice-Chancellor is appointed, the Acting Vice- Chancellor is unable to hold the Syndicate Meeting and if permission is accorded by this court to the Acting Vice-Chancellor, he will hold the Syndicate Meeting for the above purpose.

5.We have heard the applicant who is present in person and learned counsel representing the alleged contemnors on the listed application and perused the material available on record.

6.This is a simple case of enforcement of the order dated 13.08.2020 passed by this court as discussed supra. The record does not reflect that the aforesaid order passed by this court has been assailed before the Honourable Supreme Court or complied with by the alleged contemnors with the stipulated period; therefore, we have no hesitation to hold that the applicant was/is entitled to the benefit of aforesaid order passed by this Court.

7.We have noticed that, prima-facie the applicant has not arrayed the alleged contemnors by name, therefore, no contempt proceedings can be initiated without properly impleading the alleged contemnors by name. On the aforesaid proposition, we are fortified by the decision rendered by the full Bench of this Court in the case of Arif Khan and others v. Federation of Pakistan and others (2002 CLC 601).

8.We have also scrutinized the counter-affidavit submitted on behalf of the alleged contemnors; prima-facie the explanation offered by the Acting Vice Chancellor of Respondent University that he took charge for the post of Acting Vice Chancellor on 14.9.2020 whereas the order passed by this court on 13.8.2020. At this juncture no case for initiating contempt proceedings is made out.

9.Accordingly, the listed Application is disposed of with direction to the Acting Vice Chancellor University of Sindh Jamshoro to convene a meeting of Syndicate within two weeks and decide the case and claim of the applicant as per law while taking into consideration the order passed by this Court on

JUDGE

JUDGE

Karar_Hussain/PS *