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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