Muneer Ahmed (Petitioner) VS Province of Sindh and others (Respondent)

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

1.C.P. No.D- 257 of 2013

2.C.P. No.D- 841 of 2013

3.C.P. No.D-1133 of 2013

4.C.P. No.D- 1696 of 2013

5.C.P. No.D- 383 of 2014

6.C.P. No.D- 503 of 2014

7.C.P. No.D- 2989 of 2017

8.C.P. No.D- 3169 of 2017

DATE ORDER WITH SIGNATURE OF JUDGE(S)

M/s. Mohsin Raza Gopang and Nazeer Ahmed Bhatti, Advocates for the petitioners in C.P. Nos.D- 257/2013, 841/2013, 1133/2013, 1696/2013, 383/2014, 503/2014 and 3169/2017.

Mr. Muhammad Arshad S. Pathan, Advocate for the petitioners in C.P. No.D- 2989/2017.

Mr. Rafique Ahmed Dahri, Assistant A.G. Sindh.

Mr. Khalid Saeed Soomro, Advocate for respondents (Chief Officer/Administrator/Account Officer, District Council Dadu).

JUDGMENT

SALAHUDDIN PANHWAR, J.- All the above referred Constitutional Petitions are being taken up, heard and disposed of vide this single Judgment, as common questions of law and facts are involved therein. Basically, the Petitioners by invoking jurisdiction of this Court are seeking direction to the respondents to release their monthly salary, which has been stopped from the date of their appointment and up-to-date.

2.The petitioners have mainly averred in their petitions that they were appointed on various posts SUG and non-SUG cadre, in the year 2012 and onward in District Council Dadu. And after fulfilling all the codal formalities, they resumed their duties at their respective places of posting and some of them received their salaries for a month. Per petitioners, they have been working on their respective posts till today, but their salaries have not been paid. The Petitioners protested and approached the respondents, but they kept them on hollow hopes. It has also asserted that the Respondent-District Council had acted without lawful authority, thus has violated the basic provision of Article-199 of the Constitution of the Islamic Republic of Pakistan 1973. The

Petitioners, in support of their version, have relied upon various documents attached with the memo of Petitions i.e. advertisement, appointment orders, medical letters and other documents. Hence they being aggrieved by and dissatisfied with the aforesaid action of the Respondents have filed the instant Petitions with the following prayers :-

“C.P. No.D- 257 of 2013.

a) That this Honourable Court may be pleased to direct the respondent No.03 and 04 to release the salaries of all the petitioners of all the outstanding Months immediately and this Honourable Court may further be pleased to declare the act of non-payment of the Salaries of the petitioners by the Respondent No.03 and 04 as null and void.

b) That this Honourable Court may further be pleased to direct the Respondent No.03 and 04 for not causing any sort of harassment to the petitioners in any manner whatsoever.

c) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

d) Costs be borne by the respondents.

C.P. No.D- 841 of 2013

a) That this Honourable Court may be pleased to direct the respondent No.03 and 04 to release the salaries of all the petitioners of all the outstanding Months immediately and this Honourable Court may further be pleased to declare the act of non-payment of the Salary of the petitioners by the Respondent No.03 and 04 as null and void.

b) That this Honourable Court may further be pleased to direct the Respondent No.03 and 04 for not causing any sort of harassment to the petitioners in any manner whatsoever.

c) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

d) Costs be borne by the respondents.

C.P. No.D- 1133 of 2013

a) That this Honourable Court may be pleased to direct the respondent No.03 and 04 to release the salaries of the petitioners of all the outstanding Months immediately and this Honourable Court may further be pleased to declare the act of non-payment of the Salary of the petitioners by the Respondent No.03 and 04 as null and void.

b) That this Honourable Court may further be pleased to direct the Respondent No.03 and 04 for not causing any sort of harassment to the petitioners in any manner whatsoever.

c) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

d) Costs be borne by the respondents.

C.P. No.D- 1696 of 2013

a) That this Honourable Court may be pleased to declare the letter No./SO-III(LG)6-18/2013/2594 dated 21.06.2013 and impugned order whereof bearing No.GD/Estt/2013/133, dated 11.07.2013, as illegal, ultra vires, null and void, ab-initio in the eyes of law, while directing the Respondents to deal with the petitioners strictly in accordance with relevant Law and procedure.

b) That this Honourable Court may also further be pleased to direct the Respondent No.03 and 04 to allow the Petitioners to resume their duties at their places of posting as mentioned above.

c) That this Honourable Court may further be pleased to direct the respondents to release the Salaries of the petitioners forthwith without any further delay, while declaring the act of not releasing the Salaries of the Petitioners as illegal, ultra vires, null and void ab/initio.

d) that this Honourable Court may further be pleased to direct the respondent No.03 & 04 for not causing any sort of harassment to the petitioners in any manner whatsoever in future.

e) That this Honourable Court may also further be pleased to grant Ad-interim / Permanent Injunctions against the respondents restraining them from implementation of impugned order No.GD/Estt/2013/133, dated 11.07.2013, through themselves or through their subordinates, while suspending the same impugned order till disposal of present petition.

f) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

g) Costs be borne by the respondents.

C.P. No.D- 383 of 2014

a) That this Honourable Court may be pleased to declare the letter No./SO-III(LG)6-18/2013/2594 dated 21.06.2013 and impugned order whereof bearing No.GD/Estt/2013/133, dated 11.07.2013, as illegal, ultra vires, null and void, ab-initio in the eyes of law, while directing the Respondents to deal with the petitioners strictly in accordance with relevant Law and procedure.

b) That this Honourable Court may also further be pleased to direct the Respondent No.03 and 04 to allow the Petitioners to resume their duties at their places of posting as mentioned above.

c) That this Honourable Court may further be pleased to direct the respondents to release the Salaries of the petitioners forthwith without any further delay, while declaring the act of not releasing the Salaries of the Petitioners as illegal, ultra vires, null and void ab/initio.

d) that this Honourable Court may further be pleased to direct the respondent No.03 & 04 for not causing any sort of harassment to the petitioners in any manner whatsoever in future.

e) That this Honourable Court may also further be pleased to grant Ad-interim / Permanent Injunctions against the respondents restraining them from implementation of impugned order No.GD/Estt/2013/133, dated 11.07.2013, through themselves or through their subordinates, while suspending the same impugned order till disposal of present petition.

f) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

g) Costs be borne by the respondents.

C.P. No.D- 503 of 2014

a) That this Honourable Court may be pleased to declare the letter No./SO-III(LG)6-18/2013/2594 dated 21.06.2013 and impugned order whereof bearing No.GD/Estt/2013/133, dated 11.07.2013, as illegal, ultra vires, null and void, ab-initio in the eyes of law, while directing the Respondents to deal with the petitioners strictly in accordance with relevant Law and procedure.

b) That this Honourable Court may also further be pleased to direct the Respondent No.03 and 04 to allow the Petitioners to resume/continue their duties at their places of posting as mentioned above.

c) That this Honourable Court may further be pleased to direct the respondents to release the Salaries of the petitioners forthwith without any further delay, while declaring the act of not releasing the Salaries of the Petitioners as illegal, ultra vires, null and void ab/initio.

d) that this Honourable Court may further be pleased to direct the respondent No.03 & 04 for not causing any sort of harassment to the petitioners in any manner whatsoever in future.

e) That this Honourable Court may also further be pleased to grant Ad-interim / Permanent Injunctions against the respondents restraining them from implementation of impugned order No.GD/Estt/2013/133, dated 11.07.2013, through themselves or through their subordinates, while suspending the same impugned order till disposal of present petition.

f) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

g) Costs be borne by the respondents.

C.P. No.D- 2989 of 2017

a) The Honourable Court may be pleased to direct the respondents No.3 to 5 to release the salaries of all petitioners for their outstanding months/arrears immediately/forthwith and further direct the respondents to regularize the salaries by issuing it regular without it delay. Further declare that act of non-payment

of salaries of the petitioners by the Respondents No.3 to 5 illegal, unlawful act.

b) That the Honourable Court may be pleased to direct the Respondents No.3 to 5 for causing no any sort of harassment to petitioners in any manner whatsoever.

c) Any other relief which this Honourable Court deem fit and proper.

d) Costs of the petition.

C.P. No.D- 3169 of 2017

a) That this Honourable Court may be pleased to declare the letter No./SO-III(LG)6-18/2013/2594 dated 21.06.2013 and impugned order whereof bearing No.GD/Estt/2013/133, dated 11.07.2013, as illegal, ultra vires, null and void, ab-initio in the eyes of law, while directing the Respondents to deal with the petitioners strictly in accordance with relevant Law and procedure.

b) That this Honourable Court may further be pleased to direct the respondents to release the Salaries of the petitioners forthwith without any further delay, while declaring the act of not releasing the Salaries of the Petitioners as illegal, ultra vires, null and void ab-initio.

c) That this Honourable Court may further be pleased to direct the respondent No.03 & 04 for not causing any sort of harassment to the petitioners in any manner whatsoever in future.

d) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances.

e) Costs be borne by the respondents.”

3.Pursuant to the notices, respondents No.03 and 04 have filed their comments, which are available at page-649. Being relevant, contents of the same are reproduced as under:-

“02. That the contents of Para No.2 of the petition are denied. It is submitted that no advertisement has been published in any widely circulated newspaper inviting applications for particular posts, grade and experience as required according the post applied, which is in contravention of the standing orders of the Governments coupled with the article 18 of Constitution of Pakistan and standing orders of the Hon'ble Supreme Court passed in Human Rights Case No: 104/1992 dated; 19-01-1993. Which is reproduced as under:-

“While enquiring in to various complaints of violation of fundamental/human rights, it has been found that the federal Government, Provincial Governments, Statutory Bodies and Public Authority have been making initial recruitments, both Adhoc & Regular to posts and offices without publicity and properly advertising the vacancies and at times converting adhoc appointments in to regular appointments. This practice is prime facie violation of fundamental rights as the Articles

18 of Constitution guarantees to every citizen freedom of professions. Subject to notice to the all concerned and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forth with. Steps shall immediately be taken to rectify so as to bring the practice in accord with the constitutional requirements".

i)- That the administrator was not empowered to appoint any official in the District Council. The requirement for any appointment is firstly the resolution is to be placed in the Council seeking permission for appointment of any post and secondly after approval from council the same posts are to be filled by advertising the required posts for which the Committee is to be constituted by the Chairman.

These formalities were not complied with which shows that all the orders were fake, false, fictitious and frivolous.

ii)- In fact the than Administrator sought permission vide letter No: DC/DU/-38, dated 7th March 2011 from the Secretary Government of Sindh, Local Government Department in which 25 vacant posts have been mentioned and the Secretary Local Government Department has approved the permission of 25 posts subject to completion of all required codal formalities in this regard vide his letter No: SO-III(LG)6-14/2012 dated 20th March 2012, but the than Administrator had misused his powers and made fake appointment of 284 persons which was neither permitted nor was under his competency.

iii)- It is also important to note that the than Deputy Commissioner Dadu had requested the Sectary Local Government Department, Government of Sindh Karachi that 284 fake appointments were made without observing the codal and legal formalities vide his letter No: DC/PA/514/2013 dated 05-06-2014 and requested the Government to conduct inquiry. Consequently the Secretary Local Government Department, Government of Sindh Karachi cancelled the appointments referred to above vide order SO-III(LG)/6-18/2013 dated 21st June 2013 and the than Chief Officer District Council Dadu in compliance with the orders of the Sectary Local Government Department, cancelled the Appointments Orders vide order No: GD/Estt/2013/133/ dated: 11-07- 2013 but subsequently the same Chief officer District Council Dadu with malafide intention passed the order keeping the same appointments in abeyance referring to the Government General order No: PA(AS- HTP)Enq:/Appointments/06/12/13 dated: 06 -11-2013 of Sectary Local Government, but in fact the above letter relied upon by the Chief Officer has no concern what so ever to the cancellation order passed by the Sectary Local Department.

iv)- It is also very important to mention here that the Sitting Chairman District Council Dadu requested vide his letter No GD/Estt:/168/2018, dated 19-02-2018 to the Secretary Local Government Deptt: to verify whether any permission was accorded to the than Administrator District Council Dadu for appointing against existing vacancies in the District Council Dadu in that reply to the letter of Chairman, the Sectary Local Government Department informed vide letter No. SO-III(LG)/6- 14/2012 dated 28th February 2018 that the permission was accorded to appoint only appoint 25 persons against the different posts (BPS-02) (PBS-8).

v)- That some posts such as Sub Engineer, Accounts Officer and Chief Officer are to be appointed by the Secretary Local Government being (SCUG) Sindh Council Unified Grade and the reaming posts such as Naib Qasid, Clerk Chowkidar etc are to be appointed by the Chairman District Council with the approval of Council being Non SCUG, but in this case the powers of Sectary have also been utilized by the Administrator by appointing SCUG posts such as Sub Engineer (BPS-11) etc.

vi)That the petitioners have neither produced any academic prescribed or even experience certificates nor the attendance certificate have been produced by any of the petitioner which shows that they had attended any branch of office of the District Council in compliance of fake order. As against this Chairman District Council Dadu has obtained statement from various branches working under him regarding the petitioners on which all the head of branches submitted statements that no such person has even attended his branch.

(Such Documents are submitted as annexure A to M)

03.That the contents of Para No.3 are replied that since the very appointments of the petitioners were not in accordance with law nor observing required formalities, than there is no question for approaching to the Civil Surgeon for Medical Examination and if so the Medical certificates has got no legal sanctity.

It is also pertinent to mention here from the perusal of their alleged medical fitness certificates it is clear that there is very much contradictions in the number of series of offer orders, signatures and hand writing of the Medical Officers which clearly shows that the how it is possible that one and same day more than 187 persons were medically examined by one and same Civil Surgeon Dadu having different signatures.”

As well as the respondents have also taken additional pleas, which are that:

“Some Additional Pleas

1.That the fake orders were passed by the Ex-cadre persons posted temporally who have filed their comments admitting the

claim of the petitioners as valid may not be considered as they had malafidely issued fake orders and same persons have filed Comments.

2.That the comments by the sitting Chairman may be considered in place of comments filed earlier by the than Administrator.

3.That it is important mention here that since the Distinct Council came in to being till 2012 the total strength of district Council Dadu is not even 284 than how at the short time the huge quantity of 284 persons could be appointed which is beyond the powers of Administrator and financial capacity of District Council.”

4.Learned counsels for the petitioners, inter alia, while arguing the case, placed reliance upon the cases of Administrator, District Council, Larkana and another Vs Ghulab Khan and 5 others (2001 SCMR 1320), Muhammad Akhtar Shirani and others Vs Punjab Text Book Board and others (2004 SCMR 1077) and Muhammad Jameel and 45 others Vs Taluka Nazim, Taluka Municipal Administration Khairpur and 5 others (2014 P L C (C.S.) 479), and contended that the petitioners were appointed in accordance with law; that they appeared in walk-in-interview and after getting the appointment orders joined their service(s) as well as they are discharging their respective duties and during the period they were transferred from one place to another; whereas the respondents have withheld their salaries on the pretext of their appointments being bogus and fake in all respects.

5.In contra, learned counsel for the respondents/District Council, Dadu as well as the learned A.A.G Sindh contended in line of their comments/replies that there was no advertisement issued. All documents produced by the petitioners having overwriting hence are managed. As per record permission for appointment on 25 sanctioned posts was obtained, whereas in total 284 persons including petitioners were appointed beyond the mandate of the District Council. They also contend that the petitioners are falling within both cadres of SUG and non-SUG and the respondents/District Council was not competent to appoint any person on the posts which are falling under SUG cadre. Learned Counsel for respondents/District Council invited attention of this Court, that as per report submitted by the Deputy Commissioner, Dadu, the basic appointments of most of the petitioners in the present petitions have been declared as “Fake”. Therefore, at this juncture no premium can be given to them by this Court.

6.After hearing the contentions raised by the learned counsel for the respective parties as well as examining the entire record meticulously, it is a

matter of fact that the advertisements has not been field. Whereas some document(s) placed in C.P. No.D- 1696 of 2013 by claiming the same as advertisement, but it is not a newspaper cutting, but it is only a simple copy that can be prepared/managed by using the computer device, hence it is apparently a fake document. Further, unambiguously the authority/respondents firstly not competent to recruit 284 persons/appointment, secondly in SUG Cadre. Nonetheless, learned counsel for respondents/District Council has also referred an inquiry which was conducted by the Deputy Commissioner, Dadu and such report is available at page-665 of the Court file). It appears that while inquiring into the matter, the Deputy Commissioner has made reference to the judgment dated 19.01.1993, passed by Hon’ble Apex Court in Human Right Case No.104 of 1992, which states that “While enquiring into various complaints of violation of Fundamental / Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and Public Authorities have been making initial recruitments, both Adhoc and Regular to posts and offices without publicity and properly advertising the vacancies and at times converting adhoc appointments in to regular appointments. This practice is prima facie violation of fundamental rights as the Articles 18 of constitution guarantees to every citizen freedom of profession. Subject to notice to the all concerned and subject to final orders after full hearing in the matter, it is order as an interim measure that the violation of this Fundamental / Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify so as to bring the practice in accord with the constitutional requirements”.

7.Moreover, Perusal of the report of the Deputy Commissioner particularly last two paragraphs reproduced above (see para 3 of this order) unequivocally supports all facts as put forwarded by the learned counsel for the respondents/District Council Dadu as swell as learned A.A.G. Further, the Administration was not competent to fill in the posts of SUG Cadre as reflects from comments of the respondents that the than Administrator had sought permission for appointment 25 vacant posts vide letter No: DC/DU/-38 dated 7th March 2011 from the Secretary Government of Sindh, Local Government Department and the same was approved accordingly to the extent of 25 posts subject to completion of all required codal formalities letter No: SO-III(LG)6- 14/2012 dated 20th March 2012. But the than Administrator had misused his powers and made the fake appointments of 284 persons beyond permission,

authority and competency. Consequently, such act appears a colourful exercise done by the concerned authority.

8.Under these circumstances, the petitioners have failed to establish their case, consequently, all the captioned petitions being misconceived and not maintainable under law are dismissed along-with pending applications accordingly.

9.As regard the recommendation made in the Deputy Commissioner’s report that “a Committee consisting of Senior Officers from Finance Department, Chief Minister’s Inspection & Enquiry Team and Local Government Department may be constituted to fix the responsibility upon the officers / officials who are involved in committing such gross irregularities and irregularity” is concerned, learned A.A.G Sindh is directed to ensure that such inquiry be completed within a period of two months and compliance report with regard to actions whatever being suggested and taken against the delinquent officers shall be submitted to this Court.

JUDGE

JUDGE

S