ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-6500 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

FRESH CASE:

1. For order on CMA No.27769/2021 (Urgent).

2. For order on office objection No.4.

3. For order on CMA No.27770/2021 (Exemption).

4. For order on CMA No.27771/2021 (Stay).

5. For hearing of main case.

-----------

5^th November 2021

M/s. Malik Naeem Iqbal and Syed Mehmood Alam Rizvi, Advocates for Petitioner alongwith M/s. Khurram Memon and Jazib Aftab, Advocates.

-*-*-*-*-*-

1 Urgency granted.

2. Deferred.

3. Exemption granted, but subject to all just exceptions.

4&5. Through instant petition, the petitioner has impugned order of inquiry and charge sheet, both dated 29.01.2021 followed by a show-cause notice dated 06.09.2021 issued by the respondent No.2, on the grounds of being illegal and without lawful authority and also based on malafide in violation of law.

Learned counsel for the petitioner submit that the petitioner was initially appointed as Member in the Provincial Police Service, Sindh, however, subsequently, he was encadered in Police Service of Pakistan (PSP) vide Notification dated 11.7.2016 in terms of Rule 7 of PSP (Composition, Cadre & Seniority Rules) 1985, and his service was placed in Province of Sindh, whereas, he was posted as Superintendent of Police, Security Special Branch, Karachi, whereafter, vide Notification dated 12.10.2018 issued by the Inspector General of Police, Sindh Karachi he was posted as Superintendent of Police Umerkot and was performing his duties accordingly. However, according to the learned counsel for petitioner, on a complaint of some MPA of ruling party, communicated by the Governor of Sindh to the Principal Secretary to Prime Minister, a Notification dated 09.12.2019 was issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan, according to which the petitioner, “presently serving under Government of Sindh, was transferred and directed to report to Establishment Division, with immediate effect and until further orders”, however, without process of consultation with Government of Sindh in view of the judgment of a learned Divisional Bench of this Court in the case of KARAMAT ALI AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS (PLD 2018 Sindh 8), which was duly upheld by the Hon’ble Supreme Court of Pakistan in Civil Appeals No.148 to 150 of 2018 vide order dated 22.03.2019. According to the learned counsel, since the aforesaid Notification was issued in violation of Rotation Policy, as well as the judgments of the Superior Courts as referred to hereinabove, therefore, Services, General Administration and Coordination Department, Government of Sindh issued a letter dated 10.12.2019 addressed to the Secretary, Establishment Division, Government of Pakistan, Islamabad, with a request for cancellation of the Notification dated 09.12.2019 regarding transfer of the petitioner being in violation of law and also for the reason that there was shortage of PSP Officer in Government of Sindh, however the petitioner was not relieved by the Government of Sindh. It was followed by another letter dated 31.01.2020 issued by the Government of Sindh with similar request. Learned counsel for the petitioner further submit that in the meanwhile, a Constitutional Petition bearing No.D-1218 of 2020 was also filed in the public interest, wherein, petitioner was impleaded as respondent, by challenging the Notification of transfer of the petitioner as referred to hereinabove, wherein, vide order dated 24.02.2020 a learned Divisional Bench of this Court was pleased to pass status quo order in respect of transfer of the petitioner. However, according to the learned counsel, inspite of the aforesaid proceedings, and the restraining order passed by a learned Divisional Bench of this Court in the aforesaid petition, respondents continued to issue notices to join and also issued charge sheet on the ground of willful non-compliance of the aforesaid Notification, which was under challenge before this Court in the above petition. However, the notices were duly responded by the petitioner intimating entire facts and legal position through several letters, including letter dated 17.02.2021, however, according to the learned counsel, respondents have malafidely issued a show-cause notice dated 06.09.2021 on the basis of same inquiry or charge sheet on the same ground of alleged non-compliance of above Notification, whereas, the petitioner submitted detailed reply vide letter dated 15.09.2021 but did not receive any favourable response. According to the learned counsel, there is apprehension that respondents will take adverse action against the petitioner on the basis of illegal Notification, inquiry and charge sheet as well as the illegal Show Cause Notice, in violation of Rotation Policy as well as judgment of the Superior Courts as referred to hereinabove in respect of PSP Officer, therefore, request that respondents may be restrained from taking any further adverse action against the petitioner till decision in the instant petition.

While confronted as to maintainability of instant petition in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, whereas, prima-facie, transfer and posting of Civil Servant relates to the terms and conditions of the employment and otherwise cannot be challenged by filing a constitutional petition, in response, learned counsel for the petitioner submit that since the entire proceedings in the instant case, including issuance of Notification, initiation of inquiry, issuance of charge sheet as well as show-cause notice are patently illegal, based on malafide as well as in violation of law as established by judgments of Superior Court as referred to hereinabove, therefore, instant petition is maintainable. In support of his contention, learned counsel for the petitioner have placed reliance on the following case-law: -

1. WALI AHMED KHAN v. GOVERNMENT OF SINDH AND OTHERS [1982 PLC (C.S.) 1];

2. MUHAMMAD AFZAL KHAN v. KARACHI DEVELOPMENT AUTHORITY AND OTHERS [PLD 1984 KARACHI 114]; AND

3. RIFFAT HASSAN AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS [2011 PLC (C.S.) 562].

Let pre-admission notices be issued to the respondents as well as D.A.G. and Advocate-General Sindh, to be served through first three modes, for 23.11.2021, however, subject to maintainability, when comments/reply, if any, shall be filed with advance copy to the learned counsel for petitioner. In the meanwhile, petitioner may submit response to the show-cause notice. However, till next date of hearing, no final adverse order may be passed against the petitioner.

J U D G E

*Farhan/PS*