Hadi Bakhsh (Petitioner) VS Province of Sindh and others (Respondent)

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ORDERSHEET

IN THE }IIGH COURT OF SINDH, KARACI{I

C. P. No.D-1642 of2008 .

\dal.l B,u'f .-y. ^rA {o Date - m.3. c1 Order with ofJ

advocate' Petitioner tladi Bakhsh thrcugh Mr. Muhammad A$had Khan Tanoli' Respoodents Nos. I to 3 through Mirau Muhammad ShatL Addl' AG Sindh'

RespondentNo.4 through Mr. Asim Mansoor Khan' advocate' MUIIAMMAD KARIM KIIAN AGIIA. J, The petitioner in this case has filed It a Const. Petition under Alticle 199 ofthe Constitution of the Islamic Republic of

the Court to set- PakistarL l9?3 for quo waranto. Tho petitioner has re4uested respondent No-l aside and quash the Notilication dated 24.4 2008' issued by wh€reby respondent No.l rcinstated the services of rcspondent No4 as Sub-

lnspector, Anti-Comrption Establisbmenr, Sindh, (hereinafter r€ferled to as

'ACE ).

2.According to the petitioner the Post in question (sub-iNp€cto, requires the successfi.rl aPplicant to b€ a taw Graduate' This is not disputed by any of the

ID padies to the present proceedilgs- The petitiorcr claims that respondent No 4's

this e{fect was law dcgec is fake and bogus- The complsint of the paitioner to

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enquiry' Aier forwarded by respondent No.3 to the Deputy Director, ACE for his letter Inquiry the Circte Officer informod the Deputy Director, ACE vide i' the year 1996 oo the dated l7.l0.2OOO that rcspondent No.4 had been aPpointed in his LL B degee' basis oftwo bogus and forged certificarcs, one of which was

3.Based on the abovc finrting! and enquiry by Circle Officer' ACE Badir\ rcspondent No.3 suspencled r€slondent t'to'+ from service with the diEction to

report confirmed at the' conduct an inquiry agaiNt r€spondcnt No'4' Such inquiry post of Sub-lnspector' depaftnental level lhat r€spondelrt No.4 had obtained the i, fabdcated labricaled certificates cemncales of ru! r-u and D A'Part'II or B ACE, Sin<th, on the basis of forged and 't '

LL.B Final. Accordingly, an FIR bearing No.72001 was registered against rcspondent No.4 on 19.3.2001 and the cas€ was challaned ir thc Coult of Spocial Judge, Anti-Comrption, HyderEbad and is pcnding tdal b€fore that Coult.

4, R€spordent No.4 disputed that his degrees were fo4ed and fabricated aod he, thercforq Equested for r€-v€rification of both the degre$/certificates. On rE- verification vicle tetter dated 03.7-2004, issued by Controller of Examination, University of Sindl1 Jamshoro, both lhe certificates wele confirmed to be forged and manipulated.

5.Based orr the above, relevant deparhnental proceedings were iniliated against 1 .t respondent No.4, which led to him being awarded major penalty of removal from scrvice vide order dated21.4.2003.

6.According to the 'Petitioner notwithsanding his removal ftom. service respondent No.4 though maoipulation managed to get himself reinstated. The p€titioner being disgruntled and dis-sadsfied with the initial reinstatemert order dxed 29.9.20O3 rcpr€sented before the Chief Minster Sindh against sucil higbhandedness of the authorities. The Chief Minister on rcc€ipt of such complaint ordercd aD investigation through Inspection Team ofthe Chicf Ministor rcgading whether or not r€spondent No.4 should have been reinstat€d.

7, The Chief Minister's Inspection Team reached the conclusion that r€spondeltt ;i No,4's two certificates werc forged and recommended the cmcellation of - , *f.od-t No.4's reinstatemcit. Accordingly, based on the findings and i rccommendation of the Inspection Tearq the Chief Seq€tary, Govemment of .!rl, \iurt... .' * SiDdh, vide oder dalcd 07.8.2004 with&sw the I€instaterncnt order dated \' 2s.s.zoo3.

8.According to the petitioner all of a sudddn after about four years from the withdrawal of the ieinstatement order, tfie tespondent No.l, Chief Secrctary, Covernmeirt of Sindh, vide his order daled 24.4-2008 has again reinstated

No.4 in service as Sub'Lupector' ACE. It is this order which tbe paitioner has challenged as behg without lawful authority and liable to be quashed.

9.Respondert No.4 has chaltenged the filing of the Const. Petition by the petitioner against him as according to him rhe petitioner is rot an aggrieved person wilhin the meaning of Article 199 of the Constitution, 1973 and as sudh has no locus-stsndi to file the pr€sent petition.

gcnuine 10- The respondGnt No.4's c€sc is rhat borh thc certificates in question aI€ and are neither forged nor bogus and as such he is qualified and entitled to hold -rt the position of Sub-.Inspector and has bcen properly reinstated. Respondert No irrther claims that the petitioner has filed the pctition against him on account of enmity between the petirioner and himself.

I l. The respondent No.4 concedes that an FIR was rcgistered sgaiNt him in the

Anti-Comrption Court al Hyderabad and that the case has been sent-up in the Court of Special Judge, Anti-Corntpdon, Hyderabad, which is stitt pending. then adjudication. He fitther cotrcedes that he was suspended from his duty and removed ftom service vide order dated 21.4.2003, passed by Director, ACE him' Sindh after relevant departnental proceedings had been completed against \ defective as he was He however alleges that thesc departhontal proceedings werE not givetr an oPPofimity to bo heard.

ChaLman' ACE

12.Respondent No.4, appealed his dismissal Aom service to the R Sindh anrt after headng his appeal r€spondet No2 passed an order dated

No'4 he was 29.9.2003 reinstating rcspoldent No.4' Accor,ling to respondent shocked to find Yide oder datcd 07.8.2004:that his rcinstatemcnt order had later i been withdrawn.

13.R€spondent No.4 claims that he mad; €n appeal to rh€ Chief Secretary'

Govemment of Sindh (respondent No'l) against withdrawal of his reinstatemert

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order dated 07.8.2004. Thereaffer, he was again reinstated lfuough the impugned notification.

14.The respondents Nos.2,3 and 4 have filed their respective conments rn response to this petition.

15.Having heard the lcamed counsel for th€ petitioncr, leamcd Addl. AG Sindh and leamed advocate for responde No.4 at length and after a detailed study of the documents on filo tho Cout comes to the following conclusion.

16.Respondent No.4's geliminary objection that this petition is not maintainable under Articte 199 of rhe Constitutio4 1973 is misconceived as this is a quo- waranto pefition under Article 199(1xb)(ii), and under the said Anicle s petition can be filed by any person. The filing ofthe pelition do€s not havc to b€ filed by an aggrievcd party thus rhe petitioner has locu$-srardi to filo the p€tition and the paition is maintainable. Reliance is placed on the cas€ of MUHAMMAD NASEEM IIUAZ v. PROVINCE OF PIJNJAB (2000 PLC (C.S.) l3l0) which held as underi

"Under Article 199(2xii) of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is comp€tent to €nquire from any person, hotder of a public ofrce to show that u[der what authority he is hotding the said office. In suchJike cases where a u/dt in the nature of quo waranto is instituted the duty of the petitioner is to lay an information beforc the Cout thal such and such oJficer has no legal authority to retain such oJlice. For a petitione! who acts, in fact, as an infolmel is not required to establishhim locus standi to invoke the jurisdiction of the Coud. \tr7rit of quo w8rranto in its natuie is an information laying agaiDst persons who claimed or usuped an olfice, franchise or libqty and was intended to inquire by what authority he supportcd his olaim in order rhat right 10 #( o, I office may be determined. It is nec€ssary for the issuance of writ that the office should be onq i:Eated by the State of character or by statute and that the duty should be of a public nature. Writ of quo )e warmnto could be i'nvoked by "any person who even may not be an aggrieved pady but is hold\{ a public office qeated by character oi itatute by the Stater'. tui Yerson can move the High Court to challenge the unauthorized ocduiation of a public office. On any such application Court is not only to s€e that thc iocumbent is holdin[ the office under *te order of a Competent Authority-but it is to go beyond that and'see as to whether he is legally qualificd to hold the office or to remain in the office. The Court has also to see

if statutory prcvisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also ftom violation of legal provision for appointment."

17.L€amed cormsel for the r€spondent No.4 has also refeEed to the cases of MUI{AMMAD ISLAM v. GOVERNMENT OF N.W.F.P. (1998 PLC (C.S.)

1430) and GORDHANDAS v. WATF.R AND POWER DEVELOPMENT

AUTIIOrury $APDA) 0989 SCMR l4). Both the citations in essenc€ state that the filing of an FIR againsl a civil servant should not be held against him during the pendency of the case. These judgme s, howevcr, arc of little assistanc€ to respondent No.4 as in a nutshsll the instant case revolves arcuqd his allcged bogus law degree and as to why he r.Es being Einstated for a second time aner adyerse finditrgs against him by the Chief Minister's Inquiry Team.

18.Corments filed by Director, ACE (respondent No.3) do not challenge the version of events as na[8ted by the petirioner except to say that with rcgad to rcinstatemcnt he simply fotloured thc orders of the comp€tent authority. The respondent No.2 in his parawise commetrts again does not contradict thc- petitioners venion of events except to say that thc inirial order dismissiDg Respondent No 4 ftom service was withdtaum because he had not been givel a chance to fully prcsent his case before the l4uiry Committee. This conforms with a Rcspondent No.4's contention regatding his initial dismissal ftom servicc.

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19.Leamcd Addl. AG Sindh rcpres€nting tespondent No.l was unable to satisfactorily explain to the Coud on what basis after a pedod of nearly four years, rcspotrde No.4 had now been rcinstatcd by the Chief Sesetary vide s a)'g impugned notificalion in the face of the findings of the earlier Chief Minister's Irspcction Ttiam.

20.Accoding to leamed counsel for resporident No.4, respondent No 4 had made an appeal to thc Chief Secretary for hit t€instatement who had moved the

summary, which had led to his rcinstatement. But no such appeal or summary is available on record to prove this position.

21.The Cout has bome in mitd the history of this csse as narated above. It appears that it has nevq becn shovn that the rcspondent No.4 cvcr posscssed genuine certificat$, in particular LLB, which would qualifi him to be appointed to the post of SuLlnspoctor. He was initially rcmoved from sewicc on this ground but allegedly was rcinstated because he did not have the chance to be heard in person. It is significsnt that this initial &instatemelt was not b€cause Respondent No.4's deg€es had been found to be genuine but because he had not b€€tr given his dght to be heard. This initial rcinstatement however was withdrawn on the basis of a d*ailed inquiry, csnied out by the Chief Minister's Inspection Team, which containcd the following observations:-

'?. With regad to disputed educational certificate of Sub Inspecto! Niaz Hussain Chachar, the Eoquiries & Anti-Corruption Establishment reported the Controller of Examination, Unive$ity of Sindh, Jamshoro confirmed their genuineness. The University vide lefter No.X/Secrct/verificatior/1352 of 2003 dated: 10-12- 2003 infomed that after verification of certificate, it was found genuine (Anflex ure-lY)

5.However, the CMIT was not satisfied with the confirmation of above educational docum€nts. Therefore, th€ Controller of Exarninatioo, University ofSindh, Jamshoro vide this Team's letter dated: l4'h July' 2004 (Annexue-v) was asked to re-veriff the position of educational documents of Mr. Niaz Hussain Chachar, Y SI, ACE, Hyderabad as wcll as to veri! the genuinencss / authenticity of the contents of the letter of University of Sindh mentioned at Annexure-IV.

6.The Contoller of Examinations, University of Sindh, Jamshoro, denied any confrmation whatsoeyer madc by the University regarding the educational documents of Mr. Niaz Hussain Chachar and temed the documents bogus. Similarly, the Controller of Examinatior, Unive6ity of Sindh also denied the genuineness /authenticity of the contents of lener No:)VSecret/verifiiationll352 of 2003 dated: 10-12-2003.

(Annexue-VI)."

22.Notwithstanding his with&awal ofreiistatement afler the hquiry ofthe Chief Ministe6 Inspection Tcam, r€spondcnt No.4 lias kept quiet for almost four years in respecl of his dismissal Aom servide. irlo adequate explanation has been given

as to why the findings of the Chief Minister's tnsp€ction Team have suddenly b€come rcdundant after a lapse of almost 4 yeals. Ncither has any adequate cxplanation been given to sho}, why Respondent No 4 now merits reinstatement' Furthermore, no relcv8nt rule or rcgulatioa has beer referred to which in rhe given situation enables the Chief Secretary to rcinstate dismissed employees at. his whim.

23.Und€I the above circumstanc€s, thc Court linds that the Respondcnb have failed to satisry the Court of the lcgat basis under which R6pordent No 4 holds thc office of Sub Inspector, ACE.

1)24. The above arc the reasons for our shoi Order dared 17.3.2009, whsrcby we allowcd the petition aud dectared the impugned order dated 24.04.2008 passed by Respondent No.l ro be without jurisdictiot\ without lawfrrl authority and of no legal effect.

Karachi, 24rh March, 2009

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