ahlam1399
07-01-2016, 03:47 AM
Karachi
The Sindh High Court on Thursday set aside the appointment of the chairman of the Member Inspection Team and directed him to relieve the charge with immediate effect.
The order came at a hearing of a petition of Sohail Baig **ori, who challenged the appointment of Justice (retd) Dr Zafar Ahmed Khan Sherwani as chairman of the Member Inspection Team (MIT), Sindh High Court Establishment.
The petitioner submitted that the respondent was initially appointed on a contract basis on July 30, 2015, after the upgradation of the post of MIT-I, but subsequently he was also allowed to officiate as registrar of the SHC as a former judge of the high court, and that amounted to contempt of a Supreme Court judgment.
He said appointment of the respondent on a contract basis was a sheer violation of the SC judgment and high court rules, which clearly provided that the MIT post should be filled by transfer/promotion amongst the senior most district and sessions judge, whereas the respondent had retired from the post of the district and sessions judge so he could **t be appointed on a contract basis.
**ori further argued that the **tification for Sherwani’s appointment clearly indicated that in order to accommodate him, the post of Chairman Inspect Team was created, which could **t be done under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006, without the concurrence of the Administration Committee.
Amicus curiae Salahuddin Ahmed submitted that the MIT post was a public ******. He further argued that the proposal floated for the upgradation and changing the **menclature clearly indicated that it was **t merely a change of **menclature or upgradation, but it amounted to the creation of a new post on account of reorganising and restructuring the Inspection Team Department of the court.
He argued that before appointing any person on contract, it was to be judged first whether or **t any other suitable person was available for the appointment to the post; however, a **te placed before the chief justice did **t show any exigency that offer was made to the respondent due to the **n-availability of any suitable person for the appointment.
Ahmed further submitted that the creation of the post of Chairman Inspect Team after its upgradation to BPS-22 could **t be done without the concurrence of the administration committee of the court. He further argued that despite the bar contained under Article 199(5) of the constitution, the writ of quo warranto was maintainable against the respondent.
Dr Sherwani challenged the maintainability of the petition of quo warranto, bearing in mind the niceties of Article 199 (5) of the constitution. However, he failed to repudiate the defects deciphered by the petitioner in his appointment **r did he controvert the main plea that his appointment was made without the concurrence of the Administration Committee of the Sindh High Court Establishment.
A division bench, headed by Justice Mohammad Ali Mazhar, observed that the creation of the new post or its upgradation did **t mean that induction may be made on a contract basis, but it was linked with the **n-availability of a suitable person in terms of Clause (d) of Rule 5.
The court observed that after the creation of a new post or upgradation of the post, neither any advertisement was published for inviting applications for this post **r was an equal opportunity provided to other persons through the competitive process, but in one go a proposal was placed and in the same proposal the name of the respondent was mentioned to offer the post without mentioning anything in this regard that ** other suitable person was available to hold the post which was the foremost requirement envisioned under Clause (d) of Rule 5.
The court observed that the Supreme Court time and again deprecated and de**unced the appointment of retired employees on a contract basis in its judgments. It said it was difficult to grasp that contractual employment of three employees of the SHC was terminated following the dictum laid by the Supreme Court in Suo Moto Case **.24 of 2010, but again regardless of the judgment holding the field with further addition of judgments on alike proposition, the respondent had been engaged on a contract basis.
The bench observed that respondent was holding the ****** of Chairman Inspection Team without lawful authority and set aside the **tification for his appointment.
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The Sindh High Court on Thursday set aside the appointment of the chairman of the Member Inspection Team and directed him to relieve the charge with immediate effect.
The order came at a hearing of a petition of Sohail Baig **ori, who challenged the appointment of Justice (retd) Dr Zafar Ahmed Khan Sherwani as chairman of the Member Inspection Team (MIT), Sindh High Court Establishment.
The petitioner submitted that the respondent was initially appointed on a contract basis on July 30, 2015, after the upgradation of the post of MIT-I, but subsequently he was also allowed to officiate as registrar of the SHC as a former judge of the high court, and that amounted to contempt of a Supreme Court judgment.
He said appointment of the respondent on a contract basis was a sheer violation of the SC judgment and high court rules, which clearly provided that the MIT post should be filled by transfer/promotion amongst the senior most district and sessions judge, whereas the respondent had retired from the post of the district and sessions judge so he could **t be appointed on a contract basis.
**ori further argued that the **tification for Sherwani’s appointment clearly indicated that in order to accommodate him, the post of Chairman Inspect Team was created, which could **t be done under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006, without the concurrence of the Administration Committee.
Amicus curiae Salahuddin Ahmed submitted that the MIT post was a public ******. He further argued that the proposal floated for the upgradation and changing the **menclature clearly indicated that it was **t merely a change of **menclature or upgradation, but it amounted to the creation of a new post on account of reorganising and restructuring the Inspection Team Department of the court.
He argued that before appointing any person on contract, it was to be judged first whether or **t any other suitable person was available for the appointment to the post; however, a **te placed before the chief justice did **t show any exigency that offer was made to the respondent due to the **n-availability of any suitable person for the appointment.
Ahmed further submitted that the creation of the post of Chairman Inspect Team after its upgradation to BPS-22 could **t be done without the concurrence of the administration committee of the court. He further argued that despite the bar contained under Article 199(5) of the constitution, the writ of quo warranto was maintainable against the respondent.
Dr Sherwani challenged the maintainability of the petition of quo warranto, bearing in mind the niceties of Article 199 (5) of the constitution. However, he failed to repudiate the defects deciphered by the petitioner in his appointment **r did he controvert the main plea that his appointment was made without the concurrence of the Administration Committee of the Sindh High Court Establishment.
A division bench, headed by Justice Mohammad Ali Mazhar, observed that the creation of the new post or its upgradation did **t mean that induction may be made on a contract basis, but it was linked with the **n-availability of a suitable person in terms of Clause (d) of Rule 5.
The court observed that after the creation of a new post or upgradation of the post, neither any advertisement was published for inviting applications for this post **r was an equal opportunity provided to other persons through the competitive process, but in one go a proposal was placed and in the same proposal the name of the respondent was mentioned to offer the post without mentioning anything in this regard that ** other suitable person was available to hold the post which was the foremost requirement envisioned under Clause (d) of Rule 5.
The court observed that the Supreme Court time and again deprecated and de**unced the appointment of retired employees on a contract basis in its judgments. It said it was difficult to grasp that contractual employment of three employees of the SHC was terminated following the dictum laid by the Supreme Court in Suo Moto Case **.24 of 2010, but again regardless of the judgment holding the field with further addition of judgments on alike proposition, the respondent had been engaged on a contract basis.
The bench observed that respondent was holding the ****** of Chairman Inspection Team without lawful authority and set aside the **tification for his appointment.
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