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SHC sets aside appointment of director intellectual property right enforcement


May 24, 2019

KARACHI: Sindh High Court on Thursday set aside the notification about the appointment of director Directorate General of Intellectual Property Rights Enforcement (South) Karachi on own pay scale basis and directed the competent authority to fill the post within two weeks.

The order came on a petition of Manzar Hussain who challenged the appointment of director directorate general of intellectual property rights enforcement (south) Karachi. The petitioner submitted that the respondent is a grade 19 officer and does not qualify to hold office in grade 20 on OPS basis.

He submitted that impugned notification issued on February 10, 2015 for appointment of respondent government officer is ultra vires to Civil Servant Act and rules and violative of the Supreme Court judgment. He submitted that besides the fact that the respondent does not possess qualification required for BS-20 post and does not enjoy good reputation also as a civil servant and is also facing NAB reference on charges of corruption and corrupt practices.

The respondent director filed a counter affidavit and controverted the allegations leveled against him and submitted that petitioner has no locus standi to assail his posting against the post of Director BS-20 in the Directorate General of Intellectual Property Rights Enforcement (South) Karachi. He claimed that he is acting to support counterfeit mafia, besides the instant petition is suffering from serious laches and prayed for action against the petitioner.

The deputy attorney general without filling comments supported the stance of the respondent and raised the question of the maintainability of the instant petition. The court inquired the federal law officer as to whether a civil servant against whom a case of corruption was registered by the NAB, which is under adjudication before the competent court of law, can be posted to a higher rank on OPS basis, during pendency of such criminal proceedings against him.

The law officer replied that he is not aware of the pendency of NAB proceedings against the respondent director. The SHC’s division bench comprising Justice Azizur Rehman and Justice Adnanul Karim Memon expressed dissatisfaction with the assertion of the federal law officer and observed that when a civil servant is accused of subversion, corruption or misconduct, the authorized officer should be sent on leave or suspended with the approval of the competent authority, in accordance with law and rules made thereunder. The court observed that if no action is taken against the delinquent officer for the aforesaid charges, the department has to account for such departmental negligence, which is of serious nature and cannot be ignored or condoned.

The court observed that competent authority is not under obligation to post a civil servant against a higher grade post, when prima facie evidence is available showing his involvement in serious charges of misconduct and corruption. The court observed that the practice of appointment on OPS basis, being not permissible in law, has always been deprecated by the court and it impinges the self-respect and dignity of the civil servants who are forced to work under officers junior to them besides promotion of senior officers are blocked. The court observed that Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 empowers the competent authority to appoint a civil servant on acting charge or current charge basis as a stopgap arrangement if a post falls vacant and is required to be filled through promotion, the senior most civil servant otherwise eligible for promotion, but does not possess the required length of service, subject to compliance of all the codal formalities as provided in relevant law and rules. The court observed that as such, there is no provision for appointment by transfer to a higher grade on OPS basis.

The court observed that appointment or posting of respondent as Director IPR in BS-20, on OPS basis is clearly violative of law and set aside the notification of the appointment The court observed that post of Director BS-20 in the Directorate General IPR Enforcement (South) Karachi is hereby declared as vacant, which shall be filled by the competent authority in accordance with law, within a period two weeks.

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