THE
HIGH COURT OF SINDH AT KARACHI
C.P.No. D-3077 of 2021
Present: Mr. Justice Naimatullah Phulpoto
Mr.
Justice Adnan-ul-Karim Memon
Date of Hearing : 24.05.2022
Date of judgment : 31.05.2022
Petitioner : Professor
Dr. Muhammad Arshad Aazmi through Mr. Obaid-ur-Rehman advocate
Respondents : Province of Sindh and others through Mr.
Ali Safdar Depar Assistant Advocate General Sindh along with Bhuromal Focal
person Universities & Boards Department, Govt of Sindh
JUDGMENT
NAIMATULLAH
PHULPOTO, J- Through
instant Constitution Petition under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, (the
Constitution) the petitioner has prayed for the following reliefs:
a)
Direct the Respondents
to act upon the offer letter dated 20.08.2020 bearing
No.S.O(B)/U&B/APPT/Azmi/2020 issued to the Petitioner and issue
Notification for appointment of the Petitioner for the post of Chairman, Sindh
Board of Technical Education Karachi;
b)
Declare that the acts
of the Respondents illegally delaying the issuance of Notification of the
Petitioner for appointment to the post of Chairman, Sindh Board of Technical
Education, Karachi are beyond jurisdiction, illegal, unlawful, unconstitutional
and malafide;
c)
Direct the Respondents
to disregard the reports of the Intelligence Bureau and Inter-Services
Intelligence Agency while issuing the appointment letter to the Petitioner;
d)
Set aside the purported
report of the Intelligence Bureau and Inter-Services Intelligence Agency in
respect of Petitioner’s Character and Antecedents which could otherwise be made
the basis for denying or delaying the issuance of appointment letter in favour
of the Petitioner;
e)
Temporarily restrain
the Respondent No.2 from issuing appointment letter to any other
candidate/individual, except petitioner till final disposal of this petition;
f)
Grant any further
relied that this Hon’ble Court deems fit and proper in the facts and
circumstances of the case;
g)
Costs.
2. Notices were issued to the respondents as
well as A.G.
3. Brief facts leading to filing of instant
Constitution Petition are that Petitioner was a Professor of Zoology in
University of Karachi. In the month of June, 2020, he retired from his service
on attaining the age of superannuation. In addition to holding the position as
Chairperson of the Zoology Department, he had also served as Controller of
Examinations, University of Karachi. The petitioner had served on academic as
well as administrative sides in University of Karachi. It is mentioned that in addition
to his teaching experience, his 130 research articles were published in
International/National journals. In recognition of his services and experience,
it is stated that on 16.08.2018, the Registrar, University of Karachi, Karachi
issued him an experience certificate. It is further submitted that the
Respondent No.2 invited applications for the post of Chairman of different
Educational Boards in the province of Sindh and described the criteria for appointment
thereto vide advertisement dated 11.10.2019. The petitioner applied for the
posts of Chairman of (1) Board of Intermediate Education, Karachi, (2) Board of
Secondary Education, Karachi and (3) Sindh Board of Technical Education,
Karachi. He had applied through proper channel, submitted his application on
duly prescribed format mentioning therein his all academics and officials
positions which he had held. After submission of his application, the Search
Committee, constituted by the respondent No.2 on 07.03.2019, short listed the
candidates and interviewed petitioner on 03.03.2020. After interview Search
Committee recommended the petitioner for the post of Chairman, Sindh Board of
Technical Education, Karachi. Such recommendations were sent to the respondent
No.2. respondent No.2 on receipt of the names of recommended candidates,
floated a Summary on 09.03.2020 to the Chief Minister, Sindh, for his approval.
It is further alleged that respondent No. 1, malafidely put a note before
forwarding the Summary to the Chief Minister Sindh that the reports of
intelligence agencies be called in order to ascertain the character and
antecedents of the candidates who have been recommended. Pursuant to the
aforementioned note, on 07.03.2020, the Chief Minister, Sindh, accorded his
approval to the appointment of all candidates whose names were placed at first
choice in Para 4 of the Summary as Chairman of the concerned Boards. However,
he was pleased to call for reports from the concerned intelligence agencies
before issuance of appointment orders. The respondent No.2 issued an offer
letter to the petitioner on 20.08.2020 for the post of Chairman, Sindh Board of
Technical Education Karachi for a period of three years. It is further stated
that the petitioner after receipt of the offer letter submitted his acceptance
to the respondent no 2 on 21.08.2020 but till date the respondent No.2 has
failed to issue his appointment order. On 07.07.2020, the respondent No.2 had issued
a letter to the Home Secretary, Government of Sindh Karachi, for verification
of character and antecedents of the candidates as desired by the Chief
Minister, Sindh. On 16.11.2020, Home Department Government of Sindh forwarded
the Character Antecedents Verification Reports of the petitioner and others, as
submitted by the Sindh Police, Intelligence Bureau (IB) and the Military
Intelligence (MI). Two agencies i.e. Intelligence agency and Military
Intelligence submitted their reports in favour of the Petitioner. However, the
Intelligence Bureau submitted adverse report against the petitioner. It is
stated that said adverse report neither bears the signature of concerned agency
nor it was prepared on the official letter pad of the Intelligence Bureau. Petitioner
has mentioned that he had no knowledge about adverse report issued against him
by Inter-Services Intelligence. Petitioner pointed out that reports of agencies
were also adverse to one Naseem Ahmed Memon, he challenged reports of
intelligence bureau before this Court through Constitution Petition No.D-6604/2020
and petition was allowed by this Court. It is mentioned that Director General
Intelligence issued a report dated 11.12.2020 wherein the Petitioner was
declared as "NOT CLEAR" from security point of view. Petitioner has
raised plea that said report was filed in C.P.No. D-6604 of 2020 (Nasim Ahmed
Memon V/s Province of Sindh) from which, the Petitioner came to know about
adverse report against him. Report is reproduced as under:
"Syed Sharaf Ali
Shah, Dr Saeed Uddin and Mr. Naseem Ahmed Memon are "CLEAR" from
security point of view, however, following individuals are "NOT
CLEAR" for the subject purpose:
a.
Dr Muhammad Arshad Azmi
b.
Dr Bhai Khan Shar"
4. It is further submitted that adverse reports
are based upon malafides. Lastly, plea is raised that the case of the
petitioner is similar to the case of Nasim Ahmed Memon and petitioner is
entitled to same relief. Hence, this petition is filed.
5. In the parawise comments filed by
respondents No.1 and 2, allegations have been denied and it is mentioned that petitioner
accepted the offer letter with condition that appointment order will be issued
after receipt of satisfactory reports from concerned agencies. It is further
submitted that case of the petitioner was not processed further on account of adverse
reports received from the agencies. Respondents No.1 and 2 in comments have
reproduced one adverse report received from Home Department, against the
petitioner it is reproduced as under:
“During course of enquiry it is revealed that he is an
arrogant and remained frequent visitor of Nine Zero (90) MQM-A Markaz and used
to get advice from Nine Zero to perform his official duties when he was
Controller and Tabulator. As Controller/Tabulator he used illegal means for
financial gains. It is further reported that he has facilitated many failed
students of MBBS and BDS by getting financial benefits. Moreover, some students filed petition
against him in courts for his injustice to them. He was a big
support/facilitator of MQM-London and APMO in Karachi University. He is known
to be corrupt and womanizer. He does not carry good reputation.
6. Learned counsel for the petitioner argued
that fairness demanded that agencies reports, even if their confidentiality was
to be kept intact, were required to be brought to the notice of the petitioner
with the purpose, he may clarify the position or he may controvert the basic
allegations. It is also submitted that reports of the agencies were not based
upon cogent material. Lastly, it is contended
that non-issuance of appointment order is malafide on the part of respondents. In
support of his contentions, reliance has been placed upon the cases reported as
Sameen Asghar vs. Federation of Pakistan
through Principal Secretary to the Prime Minister and 12 others (2010 PLC (C.S)
725), Ahmed Saeed Siddiqui and others vs. Pakistan through Secretary
Establishment and others (2015 PLC (C.S) 923), Muhammad Zafeer Abbasi Deputy
Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron,
Government of Pakistan, Islamabad vs. Government of Pakistan through its
Secretary, Establishment Division Islamabad and 4 others (2003 PLC (C.S) 503),
Tanvir Ashraf vs. Ch. Riasat Ali and 5 others (2004 YLR 659), Muhammad Akbar
Khan Hoti vs. Federation of Pakistan (2006 PLC (C.S) 619), Secretary
Establishment Division Government of Pakistan vs. Dr. Muhammad Arif and others
(2017 PLC (C.S) 907) and Muhammad Zubair and others vs. National Command
Authority and others (2018 PLC (C.S) 519).
7. Learned Assistant A.G argued there are
two adverse reports of different agencies against the petitioner in which it is
mentioned that he is arrogant, affiliated with political party and involved in
immoral activities. It is further submitted that in the report of
Inter-Services Intelligence petitioner has not been cleared. AAG has also
referred to the offer letter in which it is mentioned that appointment order will
be issued to the petitioner upon satisfactory reports from the concerned
agencies regarding his character and antecedents. Lastly, AAG argued that
petitioner is not entitled for the relief claimed by him in the petition.
8. We have carefully heard learned counsel
for the parties and perused the relevant record.
9. We are of the considered view, that there
is force in the contentions raised by learned counsel for the petitioner.
Inasmuch as the intelligence reports adverse to the petitioner are concerned,
the same were never conveyed to the petitioner. Such reports cannot form basis
for withholding the appointment order. Moreover, reports produced by
respondents before the Court are not substantiated by some cogent material. It
is surprising that intelligence report were not signed by the concerned
officials of the agencies. Without
'disclosure' of 'adverse materials' and affording opportunity of defence,
nevertheless, the petitioner herein was deprived of his appointment order which act of respondents is
not only 'unfair' but also against the principles of natural justice and spirit
of Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan,
1973 as well. There is no cavil to proposition that principle ‘Audi-alteram
partem’ has always been considered to be embedded in the Statue even if there
is no implied or express provision because no adverse action can be taken
against anyone without providing an opportunity of defense to rebut the
material.
10. Regarding
the maintainability of filing of Constitutional Petition by the petitioner for
relief claimed before this court is concerned, in our opinion, while exercising
the constitutional jurisdiction, if vested right having been created in favour
of any party, the denial thereof would justify issuance of direction by High
Court in constitutional jurisdiction to set right the wrong. The Constitutional
Court under Article 199 of the Constitution has ample jurisdiction to give
directions to public functionaries to act strictly in accordance with law in
view of Article 4 of the Constitution. The purpose of constitutional
jurisdiction is to do justice and no one should be allowed to get away with
ill-gotten gains. This Court, in exercise of constitutional jurisdiction, would
act as conscious keeper of the Constitution and ultimate protector of rights of
citizens. High Court could not shut its eyes to misuse of powers of State
functionaries. Therefore, there is no legal embargo for filing of
Constitutional Petition for availing immediate relief by the aggrieved persons against
State functionaries if misusing their legal authority.
11. It is pertinent to mention here that more
or less in similar circumstances, this Court in the case of Nasim Ahmed Memon vs. Province of Sindh and
another (C.P.No.D-6604 of 2020) vide order dated 13.04.2021 observed as
under:
“6. Prima facie, it seems that the petitioner
was recommended by Search Committee, and with the approval of the
Competent/Controlling Authority for Education Boards, he was offered for the
appointment as Chairman, Board of Intermediate and Secondary Education, Larkana
under Section 14(2) of the Sindh Board of Intermediate and Secondary Education
Ordinance, 1972, read with 15(1) ibid for three years, subject to satisfactory
report from the concerned agencies regarding his character and antecedents.
7. Primarily, the two agencies have reported
in favor of the petitioner, however, one Special Report dated Nil is adversely
affecting him. Prima facie, the said report is neither signed nor discloses the
correct parentage of the petitioner, thus could not be taken into
consideration.
8. We are, therefore, of the considered
opinion that while the respondents may seek satisfaction of the character of
the petitioner, the so-called intelligence report from the (IB) relied upon is
no ground for withholding the petitioner’s appointment letter.
9. In light of the above facts and
circumstances of the case, this petition is allowed in the terms whereby the
Competent Authority of respondent-department is directed to issue the
appointment letter to the petitioner for the post of Chairman, Board of
Intermediate and Secondary Education, Larkana.”
12. For the above stated reasons, instant
petition is disposed of in the following terms:
(i) Competent
Authority/ Respondent No.1 shall call for character and antecedent reports of
the petitioner afresh from concerned agencies because it is brought on record
that petitioner is involved in immoral activities and does not enjoy good
reputation;
(ii) In
case, intelligence reports regarding character and antecedents of petitioner
are adverse, he will be confronted with the material sought to be used against
him. Petitioner would be entitled to an opportunity of defense to rebut the
material to satisfy the requirement of principle of natural justice and to obey
the command of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973;
(iii) In
case, character and antecedent reports of petitioner are found satisfactory,
the competent authority/respondent No1 shall issue appointment order to petitioner
in the ratio of judgment passed by this Court in the case of Nasim Ahmed Memon
vs. Province of Sindh and another (C.P.No.D-6604 of 2020) dated 13.04.2021.
13. The instant petition is disposed of in the
above terms with no order as to costs.
JUDGE
JUDGE
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