IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-2941 of 2016
Mr. Justice Muhammad Ali Mazhar.
Mr. Justice Abdul Maalik Gaddi.
Mohammad Ayub Fazlani ...…….…. Petitioner
The Province of Sindh & others….......... Respondents
Date of hearing 11.11.2016
Petitioner in person.
Mr.Munir-ur-Rahman Advocate for the M.D.A.
Mr. Abdul Jalil Zubedi, A.A.G.
Ghulam Ali Brehmani, Additional Secretary (Services), SGA&CD, Government of Sindh.
Muhammad Ali Mazhar, J: The petitioner has challenged the Notification dated 29.01.2016 by means of which his posting order dated 27.04.2001 as Deputy Director, MDA was withdrawn and he was repatriated and directed to report his parent department i.e. Sindh Small Industries Corporation.
2. The petitioner argued that vide Notification dated 14.04.2001 issued by the Services General Administration & Coordination Department, Government of Sindh with the approval of competent authority, he was absorbed in the MDA against an existing vacancy as earlier he was
performing his duties in the Sindh Small Industries Corporation. But when he was declared surplus, he was posted and permanently absorbed in MDA in terms of Rule 9-A of Sindh Civil Servant (Appointment, Promotion & Transfer) Rules, 1974. The copy of his Notification is available at page 27 of the case file and apparently he has rightly argued that his services were absorbed in MDA under Rule 9-A of Sindh Civil Servant (Appointment, Promotion & Transfer) Rules, 1974. Subsequently, the Section Officer, Housing and Town Planning Department, Government of Sindh issued an Office Order on 27.04.2001 with reference of earlier notification (supra) dated 14.04.2001 to show the petitioner’s posting as Deputy Director (L&M) BS-18, MDA against an existing vacancy.
3. In the comments filed by Respondent Nos. 1 & 2, the response to paragraph seven of the petition is quite significant which is for the ease of reference reproduced as under:-
“7. The Honourable Supreme Court of Pakistan in its judgment passed in Cr.O.P. No.89/2011 and C.R.P. NO.193/2013, dated 12.06.2013 and 05.01.2015, respectively has clearly and categorically stated that the Sindh Govt. can only appoint a person by absorption by resorting to Rule 9 (A) of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974. The Advocate General has also opined that Rule 9-A of SCS, APT Rules, 1974 is intact under the law and its scope has been further elaborated. The surplus employees absorbed strictly under this rule could not be repatriated as they were absorbed on the ground that their organizations were taken over by provincial government or institutions/organizations were closed in the process of administrative restructuring by the province”.
4. The learned A.A.G firstly referred to the judgment of the hon’ble Supreme Court passed in the contempt proceedings against the Chief Secretary, Sindh and others reported in 2013 S.C.M.R 1752 in which the hon’ble Supreme court while dealing with and striking down various legislative instruments settled various guidelines and parameters for civil servants service structure. The relevant directions or guidelines with regard to permanent absorption are positioned in clause (i) of para-126 which are reproduced as under:-
(i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9A of the Rules of 1974”.
5. The learned A.A.G also referred to a judgment passed in Review Petition No. 193 of 2013 titled as Ali Azhar Khan Baloch Vs. Province of Sindh and others, reported in SBLR 2015 S.C. 15. In this judgment too, the hon’ble Supreme Court has deliberated and propounded the scope of Rule 9-A of the A.P.T., Rules, 1974. Paragraph 117 of the judgment (supra) is envisioned as under:
“117. We have heard the learned Counsel representing beneficiaries on the scope of Rule 9-A of the Rules. Under Rule 9-A, a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the Government or autonomous body and/or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office. It is further provided under Rule 9-A of the Rules that such person shall be appointed to a post of equivalent or comparable basic scale and, in case such post is not available, then to a post of lower Basic Scale. Rule 9-A of the Rules provides further restriction to the seniority of such person to the post by reckoning his seniority at the bottom of the seniority list from the date of such appointment, with a further rider that his previous service, if not pensionable, shall not be counted towards pension and gratuity. We have dealt with the aforesaid issue in para 116 of the judgment under review and have set parameters of Rule 9-A of the Rules in para 126 of the judgment under review.”
6. The learned AAG with the assistance of the Ghulam Ali Brehmani, Additional Secretary, SGA&CD contended that in terms of the judgment passed by hon’ble Supreme Court, the absorption of the petitioner in MDA cannot be declared unlawful as on being found him surplus in the Sindh Small Industries Corporation, he was absorbed under Rule 9-A of the A.P.T., Rules, 1974 in the M.D.A. on 14.04.2001.
7. We have also seen the comments of Respondent No.5 (Sindh Small Industries Corporation) duly signed by its Director Administration in which also it has been reiterated that the petitioner was absorbed as Deputy Director in MDA under Rule 9-A of the A.P.T., Rules, 1974 and the matter has no concern with the Corporation (Respondent No.5). The petitioner was relieved with other officers keeping in view the rightsizing policy of the Sindh Government.
8. The Respondent No.4 (M.D.A) in its comments admitted that the petitioner was absorbed in the MDA vide Notification dated 14.04.2001. However, they also mentioned that subsequently, in 2006 he was posted in LDA and then reverted back to MDA and finally he was repatriated to his parent department vide Notification dated 29.01.2016. The learned counsel for the MDA argued that if the petitioner is aggrieved, he may file the review petition in the Supreme Court but this court has no jurisdiction to entertain this petition.
9. The permanent absorption of the petitioner in MDA vide Notification dated 14.01.2001 is not disputed rather SGA&CD has overwhelmingly and devastatingly supported this order. It is also an admitted fact that the petitioner was performing his duties in Sindh Small Industries Corporation and the comments of Director Administration, Sindh Small Industries Corporation (Respondent No.5) do show that the services of 229 officers of Sindh Small Industries Corporation were declared surplus by the corporation with effect from 01.07.2000 keeping in view the rightsizing policy of the Sindh Government including the petitioner and their services were placed at the disposal of SGA&CD, Government of Sindh for their adjustment and absorption in government departments and later on the petitioner was absorbed in the MDA in accordance with Rule 9-A of the A.P.T., Rules, 1974.
10. We have conscientiously delved into para-126 of the judgment passed by the hon’ble Supreme Court in contempt proceedings against the Chief Secretary, Sindh. The Apex Court has explicitly held that the Sindh Government can only appoint a person by absorption by resorting to Rule 9-A of the APT Rules 1974 while in judgment passed in review petition in the case of Ali Azhar Khan Baloch (supra) it was held that under Rule 9-A a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the Government or autonomous body and or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office.
11. It is not the case here that the petitioner was not eligible or qualified to be absorbed in the year 2001 nor any such issue has been raised by the MDA in their comments except that the review should be filed before the Apex Court. In fact the repatriation order issued by the MDA is against the dictum laid down by the hon’ble Supreme Court where a variety of guidelines have already been provided to deal with innumerable issues including absorption and the SGA&CD has also reaffirmed that the absorption was made properly. It is totally unjustified to repatriate the petitioner to Sindh Small Industries Corporation where the petitioner was already declared surplus along with 229 officers in the year 2001 thereafter he was absorbed in MDA consistent with Rule 9-A of A.P.T Rules 1974 which fact is obviously manifesting from the record. The learned counsel for the M.D.A argued that though the petitioner was absorbed in M.D.A but subsequently in the year 2006 he was posted in L.D.A and reverted back to M.D.A. In our understanding of law when the petitioner was permanently absorbed in M.D.A then his subsequent posting in L.D.A was in fact against the dictum of the apex court. Indeed we have no reluctance to hold that presently the petitioner has been repatriated from his parent department in violation of aforesaid judgments of the Supreme Court. The binding effect of the judgment of honorable Supreme Court is well known. Under Article 189 of the Constitution, any decision of the Supreme Court to the extent that it decides question of law or enunciates a principle of law is binding on all other courts in Pakistan. In the case of Justice Khurshid Anwar Bhinder versus Federation of Pakistan, reported in PLD 2010 SC. 483, it was held that “where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this Article and is binding on all courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the court holds in the hierarchy of courts in the country, enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle or the meaning of law”.
12. One more crucial facet cannot be ignored that Secretary to Government of Sindh, Local Government & Housing Town Planning vide Notification dated 4.10.2016 has already cancelled the impugned Notification dated 29.1.2016 with the approval of competent authority and allowed to continue the petitioner his duties as Director M.D.A but despite that the petitioner is not being allowed to continue. The Notification is reproduced as under:
“GOVERNMENT OF SINDH
LOCAL GOVERNMENT &
HOUSING TOWN PLANNING,
Karachi, dated the 04th October, 2016
NO.SO(G)/HTP/MDA/2-112/2016:- The name of Mr.Muhammad Ayub Fazlani, Director (BS-19) Malir Development Authority having been absorbed under Rule 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, in this Department’s vide Notification No. SO(G)/HTP/MDA/1-20/ 2001 dated 27.04.2001.
2. The Notification No. SO(G)/HTP/MDA/1-20/2001 dated 29.01.2016 is hereby cancelled/withdrawn with the approval of Competent Authority with Secretary, Local Government, Government of Sindh.
3. He is allowed to continue as Director (BS-19) in Malir Development Authority with immediate effect.
SECRETARY TO GOVT. OF SINDH”
13. As a result of above discussion, the petition is disposed of along with pending applications with the directions to the respondent No.4 to allow the petitioner to join and perform his duties in the M.D.A. The petitioner has also complained that salary has been stopped. The Director General, M.D.A is directed to ensure the payment of unpaid salaries of the petitioner within fifteen days’ time.