Irked by ‘unethical’ tactics, SHC throws out plea to form full bench

The Sindh High Court (SHC) on Wednesday dismissed the Muttahida Qaumi Movement (MQM) lawmakers’ request to constitute a full bench to hear their petition against the provincial government’s decision to fill over 21,000 posts through IBA Sukkur.

Issuing an order on the application, an SHC division bench comprising Justice Mohammad Karim Khan Agha and Justice Khadim Hussain Tunio said that there was no undue legal complexity or other compelling reason to justify the petition referred to the high court’s chief justice to form a full bench.

The court said the request to form a larger bench was made after eight separate hearing dates, which prima facie indicates that this was an afterthought, with the intention to delay the petition’s hearing, for which the petitioners had obtained an ex-party stay order on the first date of hearing.

The court said the petitioners have no case made out for forming a larger bench to hear the petition. Regarding one of the judges excusing himself from the case on account of his perceived impartiality, the court said that numerous hearings of the case had been held earlier without a complainant and dates fixed to hear arguments on the petition’s maintainability.

The court said that it is a well settled law that it is up to the judge, based on his own conscience, if he decides to hear a case. The court said that prima facie the petitioners’ counsel appears to be using a tactic, whereby through his misbehaviour in court he attempts to cow judges so that they may be tempted to mark the case not before them so that ultimately he might get a bench of his own choice.

The court said that such a conduct cannot be countenanced and must be discouraged, especially as this unethical practice appears to be on the rise these days. The court said that it is apparent that a perception of bias or impartiality was being created by the litigant or the counsel to divert the case from the bench which he perceives as unfavourable to a bench which he perceives as more favourable.

The court said that succumbing to such tactics would not only send the message that the judges can be cowed into submission by such tactics but it would also erode public confidence in the courts, and at the same time, it would increase the workload of the bench to whom the case would be passed on.

The court also dismissed the petitioners’ plea to excuse a member of the bench from hearing the case. The court took exception to the conduct of the counsel, who, after the application’s dismissal, started making scurrilous, scandalous, offensive and insulting remarks against the bench and the judiciary, with the tirade continuing unabated for 15 to 20 minutes, despite the fact that he was asked on numerous occasions to leave the rostrum.

To a court query, the Sindh advocate general advised the bench that prima facie the counsel’s conduct amounted to contempt of court. The bench said that it exercised maximum judicial restraint largely on account of the counsel’s young age, and with a view to avoid potentially damaging his career, avoided initiating such proceedings.

The court, however, said that prima facie such behaviour on the part of the counsel was highly deprecated and not expected of an advocate of a high court. The court cautioned the petitioners’ counsel to be careful in his future conduct when appearing before the court, lest he face appropriate proceedings in accordance with the law.

MQM lawmakers’ counsel Tariq Mansoor had said his clients had serious reservations over a fair trial and due process of the law by the previous benches of the court. He said that the previous bench had prima facie forced the petitioners to either withdraw the petition on mere assumptions and then prima facie arbitrary exercise of power, calling a third party in the matter.

He said that the instant matter was a complex case with a high level of public interest and sensitive nature that indirectly related to the lives and employment opportunities of Sindh’s people. He requested the court to constitute a full bench comprising of 10 senior-most SHC judges to hear the case.

In January the court had suspended the provincial government’s notifications of recruitment of over 21,000 employees on various posts of grades 1 to 15 in different government departments after tests conducted by IBA Sukkur, ordering that no recruitment of any government employee should be made through IBA Sukkur.

Kanwar Naveed Jameel and other MQM lawmakers had said in the petition that the provincial cabinet, in its meeting held on November 11, 2019, had unanimously agreed to approve the IBA Sukkur’s testing service as the only recognised government institution or testing service for the general screening of those who applied for recruitment in any government department.

They said IBA had illegally published an advertisement on its website about the recruitment process. They referred to certain details obtained from the Securities & Exchange Commission of Pakistan that show that IBA Sukkur was incorporated on July 23, 2015.

The court was requested to declare that the Sindh government’s notification to recruit over 21,000 people through IBA Sukkur as unlawful because the respondent was neither eligible nor competent to be awarded the contract to conduct tests for over 21,000 vacant posts.

He requested the court to direct the provincial government to conduct tests for the posts through the SPSC by publishing clear advertisements for each and every post in a transparent manner.

The registrar of IBA Sukkur also filed comments questioning the maintainability of the application filed by the carrier testing service for becoming an intervenor in the petition. The representative of IBA Sukkur said the Sindh government had approved the summary for the recruitment of 37,185 vacant posts of grades 5 to 15 through IBA Sukkur and Karachi.