BEFORE SINDH SUBORDINATE JUDICIARY SERVICE TRIBUNAL (IN THE HIGH COURT OF SINDH AT KARACHI)

 

Service Appeal No. 02 of 2017

 

         Present:      Mr. Justice Naimatullah Phulpoto, Chairman

                                                                Mr. Justice Abdul Maalik Gaddi, Member

 

 

Date of Hearing                    :               14.09.2019

 

Date of judgment                 :               14.09.2019

 

Appellant                            :             Ms. Rizwana Altaf Hussain through Mr. Ali Asadullah Bullo Advocate

 

 

Respondent                         :             Mr. Ali Safdar Depar Assistant Advocate General Sindh

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, CHAIRMAN.- Appellant Ms. Rizwana Altaf Hussain has filed Service Appeal No. 02/2017 against the orders dated 18.11.2016, whereby Honourable Chief Justice in exercise of the powers under Rule 9(2) of Sindh Judicial Service Rules, 1994, dispensed with the services of Ms. Rizwana Altaf Hussain, Civil Judge & JM, who was on probation. Such Notification No. GAZ/VI-Z-(Probation)/2016 dated 25.11.2016 was issued by the Registrar of this Court.

 

2.         Brief facts leading to the filing of the appeal are that appellant was enrolled as Advocate of the lower courts of Sindh on 17.06.2008 and during practice before lower courts, she was appointed as Primary School Teacher in  BS-09 on 11.08.2008 in the Education and Literacy Department, Government of Sindh on contract basis. The services of the appellant were regularized as P.S.T by the Education Department on 02.07.2012 with effect from 01.02.2012 when she served more than three years. In the meanwhile, it is stated that post of Civil Judge cum Judicial Magistrate was advertised on 07.09.2015 by the Registrar of this Court in various national newspapers. It is further mentioned in the Appeal that as per one of the requirements of the advertisement for the post of Civil Judge cum Judicial Magistrate was that the civil servant who has more than three years’ experience as a regular employee in connection with the affairs of either Provincial or Federal Government, he or she is eligible to apply. Therefore, the appellant being eligible applied for such post. She approached the Education & Literacy Department vide letter dated 09.09.2015 for issuance of NOC but same was never considered till last date for applying for the post of Civil Judge & JM.  Appellant in such circumstances without NOC by Education Department directly submitted proforma/application. Appellant appeared in the written and oral tests and declared successful on 18.04.2016. Appellant has further stated that Education & Literacy Department, Government of Sindh despite approaches did not issue NOC and for that reason she left proforma blank. As soon as appellant was declared successful against the post of Civil Judge & JM, she resigned from her job by tendering the resignation to the competent Authority i.e. District Education Officer through Taluka Education Officer vide letter dated 19.04.2016, but it was accepted on 02.09.2016 w.e.f 19.04.2016. Appellant has further stated that after tendering resignation she sent a proforma letter/ Form-2 to the office of Accountant General Sindh for stopping of the monthly salary of the appellant but it was also never stopped till September 2016. The salary continued to be credited in the account of appellant without her consent but the same according to the appellant, was every time returned through challan in the Head of account of Government of Sindh through State Bank of Pakistan. Upon recommendation of the Provincial Selection Board of the High Court of Sindh and with the approval of the Chief Minister Sindh, Law Department issued Notification dated 02.06.2016, whereby the appellant was recommended for the post of Civil Judge and JM. After completion of the formalities, such as medical fitness examination and police verification, appellant joined her duties as Civil Judge & JM on 28.06.2016 in District East of Karachi. She applied for suspension of her bar practicing license on 28.06.2016, which was accepted vide order dated 17.08.2016. Appellant has raised plea in the appeal that impugned order whereby her services were dispensed with on account of lack of qualification was not legally justified. Appellant has prayed for the following reliefs:

           

i)                    Declare the impugned Order dated: 18-11-2016 against the Sindh Judicial Service Rules, 1994, passed in contravention of principles of natural justice, equity and fair play and set aside the same.

 

ii)                  Direct the Respondent to issue reinstatement order of the Appellant and to hold and enquire the matter by giving opportunity of proper hearing in accordance with law.

 

iii)                Further prayer(s) shall be urged and brought in during the course of arguments.

 

iv)                Any other relief(s) this Hon’ble Court may deem fit in the given circumstances and in the great interest of justice.

 

3.         Respondent filed comments and raised preliminary objection that appellant’s services were dispensed with on 25.11.2016, but she did not file any Departmental Appeal/ Representation, instead she filed Service Appeal directly that too on 20.01.2017 after lapse of two months. It is further stated in the comments that appellant did not disclose her occupation at the time of submitting the application form for the post of Civil Judge & JM and intentionally left blank columns in the prescribed form to conceal the fact that she was school teacher and not a practicing Advocate as required. Appellant tendered her resignation as Primary Teacher on 19.04.2016 after she was appointed as Civil Judge & JM, which was not accepted by the relevant authorities till 02.09.2016 despite she joined judicial service in June 2016 concealing the fact that she was Government servant i.e. school teacher. It is also mentioned that appellant had been drawing monthly salaries of school teacher till July 2016. The contents of Para 15 have been denied and it is stated that appellant being continuously remained employed as Government school teacher was not in possession of valid license to practice as an Advocate w.e.f 11.08.2008 to 02.09.2016 and was not eligible during that period for the post of Civil Judge & JM that too without knowledge of Education Department.    

 

4.         Learned Advocate for the appellant has mainly argued that appellant was civil servant having requisite experience of three years to apply for the post of Civil Judge & JM. It is further contended that appellant had applied for grant/ issuance of NOC to the Education Department as she was serving as PST but it was never issued. It is argued that appellant had tendered resignation, but salary was credited in her account without her knowledge and she always returned the same through challan in the Government Treasury of State Bank of Pakistan. It is submitted that omission of leaving the column to apply through proper channel was in good faith as appellant had tendered resignation. It is further submitted that regular enquiry in the matter was required but it was not conducted. It is submitted that there is stigma on her career without legal justification. It is further argued that the impugned order has been passed against the principles of natural justice and equity. Lastly, learned Advocate for the appellant prayed for setting aside the impugned order and reinstatement. In support of his contentions, reliance has been placed upon the cases Mrs. Abida Parveen Channar vs. High Court of Sindh (2011 PLC (C.S) 836 and unreported judgment of Honourable Supreme Court in C.A.Nos. 1341 to 1344 of 2001 dated 30.07.2008.

 

5.         Mr. Ali Safdar Daper Assistant Advocate General Sindh argued that appellant was serving in the Education Department but she did not apply through proper channel and relevant columns in the application Form were intentionally left blank by her, giving impression that she has been practicing law as Advocate. He has also argued that she drew monthly salaries as school teacher till July 2016. Learned AAG argued that regular enquiry was not required in the case as appellant was heard by the competent Authority. As regards to stigma, it is argued that no stricture has been passed against the appellant in the impugned order by competent Authority. Learned Assistant Advocate General argued that appellant has filed appeal without exhausting the remedy of departmental appeal/ representation. Lastly, he prayed for dismissal of the appeal.

 

6.         We have carefully heard learned counsel for the parties and perused the impugned order. Honourable Chief Justice vide order dated 18.11.2016 in exercises of powers         under Rule 9(2) of Sindh Judicial Service Rules, 1994, dispensed with the services of Ms. Rizwana Altaf Hussain, Civil Judge & JM, who is on probation in terms of rule 9 ibid. For the sake of convenience, impugned order is reproduced as under:

 

 “Heard Ms. Rizwana Altaf Hussain in person, perused record and order dated 04-10-2016, passed by the Hon’ble Authorized officer. The delinquent officer has been confronted with the documentary evidence available on record. The documents available on record reveals that Ms. Rizwana Altaf was serving as Government Primary School Teacher at the time she applied for the post of Civil Judge & JM and that she was under obligation to present her candidature for the said post through proper channel after obtaining assent from Education Department. The relevant columns in the application form designed for disclosure of information by an applicant regarding occupation/ job/business etc were intentionally left blank giving an impression that she has been practicing law as an Advocate. Though she has been enrolled by the Sindh Bar Council as an Advocate on 17-06-2008, nevertheless, on joining service as Primary School Teacher on 11-08-2008, the licence issued to her by the Sindh Bar Council is deemed to have been suspended in terms of rule 49 of the Sindh Legal Practitioners and Bar Council Rules, 2002. Therefore, on the day of presenting candidature for appointment to the post of Civil Judge & JM she being Government School Teacher was not an enrolled Advocate, hence, stood disqualified for appointment to the post of Civil Judge & JM. Conversely, she failed to apply for the post of Civil Judge & JM in accordance with the advertisement published in daily newspapers on 06th September, 2015 and furnished the application form straight away to this Court without routing it through Government of Sindh, Education Department. The record further reflect that the resignation tendered by her on 19-04-2016 (ie after her appointment as Civil Judge & JM) from the post of Government School Teacher was not accepted by the relevant authorities till 02-09-2016, despite she joined judicial service in June, 2016 concealing the fact that she was a Government Servant i.e. Teacher. The record further reflects that she drew monthly salaries of school teacher till July, 2016, though same were refunded later on. Even at the time of her appointment vide notification dated 02nd June, 2016 and furnishing joining report as Civil Judge & JM, her name was on pay roll of serving Primary School Teachers of Education Department. Appreciating all the above mentioned facts and circumstances it is clear that Ms. Rizwana Altaf Hussain being continuously employed as Government School Teacher was not in possession of active license to practice as an Advocate w.e.f 11-08-2008 till 02-09-2016 and was not eligible during that period to apply for the post of Civil Judge & JM that too without knowledge and consent of Education Department. Hence, owing to lack of qualification essentially required for the post of Civil Judge & JM which could not be condoned. She cannot be expected to perform duties honestly and uprightly be demonstrating requisite capabilities. Her retention in judicial service will, therefore, be against the institutional and public interest. Consequently, in exercise of powers under Rule9(2) of Sindh Judicial Service Rules, 1994, the services of Ms. Rizwana Altaf Hussain, Civil Judge & JM, who is on probation in terms of rule 9 ibid are henceforth dispensed with. Let the quarters concerned by informed forthwith and requisite notification be issued accordingly.”  

 

7.         In our considered view, it is matter of record that Ms. Rizwana Altaf Hussain was serving as Government Primary School Teacher at the time she applied for the post of Civil Judge & JM. She was under obligation to present her candidature for the said post through proper channel after obtaining NOC/permission from Education Department. The relevant columns in the application Form designed for disclosure of information by an applicant regarding occupation/ job/business etc. have been intentionally left blank giving an impression that she has been practicing law as an Advocate. Mere plea that she had applied to the Education Department but NOC was not issued was not sufficient requirement. She had left relevant columns intentionally blank and her explanation is found by us quite unsatisfactory. It appears that she was enrolled by the Sindh Bar Council as an Advocate on 17-06-2008, nevertheless, on joining service as Primary School Teacher on 11-08-2008, the license issued to her by the Sindh Bar Council was deemed to have been suspended in terms of rule 49 of the Sindh Legal Practitioners and Bar Council Rules, 2002. Therefore, on the day of presenting candidature for appointment to the post of Civil Judge & JM, she being Government School Teacher was not an enrolled Advocate, hence, stood disqualified for appointment to the post of Civil Judge & JM but this fact was suppressed by her and she applied for the post of Civil Judge & JM and furnished the application form directly to this Court without proper channel. As regards to her resignation it appears that the resignation was tendered by her on 19-04-2016 after her appointment as Civil Judge & JM from the post of Government School Teacher and her resignation as school teacher was not accepted by the competent authority till 02-09-2016, despite she joined judicial service in June, 2016. Appellant concealed the fact that she was a Government Servant as school Teacher in the Education Department. It is a matter of record that she drew monthly salaries as school teacher till July, 2016, though the same were refunded later on. Two salaries were refunded on the same date. We have also noticed that at the time of her appointment as Civil Judge & JM vide Notification dated 02.06.2016 and joining report, her name was on pay roll of District Primary Education Department. Appellant before filing of the appeal failed to file Representation before the Competent Authority. Honourable Chief Justice rightly came to the conclusion that Ms. Rizwana Altaf Hussain being continuously employed as Government School Teacher was not in possession of valid license to practice as an Advocate w.e.f 11-08-2008 till 02-09-2016 and was not eligible during that period to apply for the post of Civil Judge & JM that too without knowledge of the Education Department. Appellant concealed material facts and applied for the post of Civil Judge & Judicial Magistrate with unclean hands. Rightly, it has been observed by Honourable Chief Justice that she cannot be expected to perform duties honesty and uprightly and her retention in the service particularly in judicial service will be against the institution. The Honourable Chief Justice on the basis of sufficient documentary material rightly dispensed with the services of Ms. Rizwana Altaf Hussain on account of lack of qualification essentially required for the post of Civil Judge & JM, who was on probation. Regular inquiry was not required in the matter for the reasons that Honourable Chief Justice heard the appellant before passing the impugned order. Moreover, material facts have been admitted by the appellant. In our humble view, case law relied upon by learned Advocate for the appellant is quite distinguishable from the facts of this case. In the case of Mrs. Abida Parveen (supra) there were serious allegations of misconduct leveled against her, therefore, regular enquiry was ordered by the Honourable Supreme Court but in this case it is admitted by the appellant that relevant columns in the application form designed for disclosure of the information by an applicant regarding occupation/job or business were intentionally left blank giving an impression that she has been practicing law as an Advocate. As such, in our considered view, when the facts are admitted, no regular enquiry was required. As regards to the last contention of learned counsel for appellant with regard to stigma is concerned, perusal of impugned order shows that Honourable Chief Justice has not recorded stricture/ remarks in the impugned order against the appellant relating to her ability, behavior, temperament and competence. Therefore, such contention of learned counsel for appellant is without any substance.

 

8.         For the above stated reasons, we have come to the conclusion that the impugned order dated 18.11.2016 is based upon sound reasons and requires no interference. Consequently, instant Service Appeal is without merit and the same is dismissed.

 

CHAIRMAN

 

                                    MEMEBER