SHC issues show-cause notices to chief and PA secretaries for violating Supreme Court orders

The Sindh High Court has issued show-cause notices to the chief secretary, the law secretary and the senior special secretary of the provincial assembly, directing them to reply and explain why contempt of court proceedings may not be initiated against them for willful defiance of the court orders with regard to the absorption of government employees into other departments.

The show-cause notices were issued on a petition of Irshad Hussain, who challenged the absorption of a grade-9 junior school teacher into the Sindh Assembly as senior translator in BPS-16.

The petitioner submitted respondent Ghulam Ali, who was initially appointed as junior school teacher in the education department, was absorbed into the Sindh assembly as senior translator in BPS-16 on March 2011.

The petitioner’s counsel submitted that the purported absorption and appointment of the respondent as senior translator in the provincial assembly was against the landmark judgment of the Supreme Court whereby the absorption of employees in different cadres was declared illegal and they were ordered to be reverted to their respective parent departments.

He submitted that the respondent was still holding the post of BPS-16 in violation of the law laid down by the SC, contending that in any event, respondent, who was a junior school teacher in the education department, could not have been absorbed/appointed in BPS-16 in the provincial assembly.

The additional advocate general, referring to the secretary of provincial assembly’s statement, said that the respondent was absorbed and appointed against a newly created post of senior translator in BPS-16 in the provincial assembly; therefore, the above authorities of the SC were not attracted in the instant case.

The provincial law officer was however unable to show the court any provision of law whereby a junior school teacher in BPS-9 of the Education Department can be absorbed/appointed against the post of senior translator in BPS-16 in the provincial assembly, which falls in a different cadre.

A division bench headed by Justice Nadeem Akhtar observed that in spite of becoming fully aware of the SC judgment, the respondents, including the law secretary and the assembly, retained the services of the junior school teacher illegally and did not repatriate him to his parent department for about four and a half years after the passing of the first order on June 12, 2011 by the SC, and even after one year of the second order of January 1 2015 passed by tge SC he was very reluctantly repatriated on January 1 2016.

The court observed that in the garb of a purported decision by the competent authority on the respondent appeal, he was allowed on October 17, 2018, to join his duties at the same post with effect from the date when he was relieved on January 4, 2016.

The court observed that stance taken by the respondents that the junior teacher was absorbed/appointed against a newly created post of senior translator is, on the face of it, misleading and malafide, as the abovementioned rules framed as far back as in the year 1975 specifically provide the qualification and mode of appointment of senior translators.

It further observed that under the said rules, only such a candidate can be recruited/appointed for the said post who has a degree from a recognised university in Arabic, Persian or Urdu as one of the subjects in the case of an Urdu translator, or a degree from a recognised university in Sindhi as one of the subjects in case of a Sindhi translator, or he may be promoted from amongst the members of the service holding posts of junior translators with an experience of at least three years.

The court observed that the above criteria prescribed by the rules shows that the respondent was not eligible for the post of senior translator.

It further stated that the absorption/appointment of respondent as senior translator in BPS-16 in the provincial assembly was void ab initio and the impugned notification of March 1, 2011 as well as the notification of October 17 2018 issued by the secretary of the Sindh Assembly being without lawful authority and of no legal effect are hereby set aside.

The court directed all the respondents, including the chief secretary, the law secretary and the competent authority of the provincial assembly, to ensure that the law laid down by the SC is implemented in letter and spirit and the respondent is repatriated forthwith to his parent department.

The notification in this behalf must be issued immediately and be placed before this court on the next date of hearing, the court ordered.

The court observed that the respondent was liable to return the entire amount received by him during the entire said period towards differential in the pay scales of BPS-9 and BPS-16, and the respondent authorities are duty-bound to recover such amount from him and to deposit the same in the government exchequer.

The court directed the secretaries of education and finance and the secretary of the provincial assembly to calculate the differential amount recoverable from the respondent and to submit a statement before it on the next date of hearing.

It observed prima facie, the respondents have disobeyed and violated the orders of the SC. It issued show-cause notices to the chief secretary, the law secreatry, the secretary of the provincial assembly and the deputy secreatry of provincial assembly to explain why proceedings should not be initiated against them for committing willful and deliberate contempt of the orders of the SC.

The high court directed them to submit their replies to the show cause notices on or before the next date of hearing. It also directed the secretary of the Sindh Assembly to submit a list of all such employees of the provincial assembly who were absorbed/appointed at any posts and were still holding such posts, and also the notification of the repatriation of the respondent to his parent department. The court issued notices to the advocate general, the CS and others and called their compliance reports on April 22.