SHC restrains govt officers facing NAB charges from making financial undertakings

The Sindh High Court (SHC) on Friday directed the Sindh government to ensure that civil servants facing corruption references of the National Accountability Bureau (NAB) over moral turpitude before accountability courts are not allowed to carry out financial undertakings in any manner whatsoever.

Disposing of former Karachi Development Authority (KDA) director general’s (DG) petition against his transfer, a division bench of the SHC comprising Justice Aftab Ahmed Gorar and Justice Adnanul Karim Memon also directed the Sindh government to adhere to all the principles as laid down by the Supreme Court on transfers and postings of officers having the security of tenure of service at the particular station of posting.

The petitioner, Asif Ali Memon, had challenged his transfer from the post of the KDA DG and posting of a junior officer on the post by impugned notifications. A counsel for the petitioner, Khawaja Shamsul Islam, submitted that the tenure of civil servants had been protected in the Anita Turab case. He submitted that an officer of grade 19 who was also facing a NAB reference before an accountability court in Islamabad had superseded Memon through the impugned notification issued on October 12, 2021.

He submitted that the post of the KDA DG was a cadre post and the petitioner could not be transferred in the manner it was done. He submitted that the removal of the petitioner was politically motivated as he was performing work assigned by the Supreme Court with regard to removal of encroachments on public and amenity land in Karachi.

A provincial law officer controverted the stance of the petitioner submitting that every civil servant was liable to serve anywhere within or outside the province against the post in any organisation, setup established by the Sindh government.

He submitted that the Supreme Court was clear on such subject issue in the Khalilullah Kakar case and held that the tendency to bypass remedy provided under the relevant statute by resorting to constitutional jurisdiction of courts should be discouraged so that the legislative intent was not defeated.

The provincial officer maintained that the petition was not maintainable as the petitioner had no vested right to remain on a particular post.

The high court, after hearing the counsels, observed that the SC in its various judgments had held that once a person was appointed to a tenure post, his appointment to the said office began when he joined and it came to an end on the completion of the tenure but no right was conferred to hold the post for the entire period.

The SHC observed that it was well-settled that under the Section 10 of the Sindh Civil Servants Act, a civil servant could not insist that he or she be posted or transferred to a particular post.

The high court observed that the Section 10 did not prescribe a minimum period for which a civil servant must serve at a post but it did not mean that the government without assigning any reason could move a civil servant from the place he was posted to after a month or subject the civil servant to repeated postings in short period because this would amount to punishing him.

The SHC observed that such postings also adversely affected the public interest and resulted in waste of resources and bad governance. The high court observed that the post of the KDA DG was not a tenure post but the principle of serving for a particular duration at this post should be followed as per superior court directives. The SHC held that the petition was not maintainable but a one-month posting as in the case of the petitioner would not serve the interest of public at large.

AG put on notice

The SHC on Friday issued notices to the advocate general of the province and others on a petition filed by the Muttahida Qaumi Movement-Pakistan against amendments in the Sindh Local Government Act 2013.

MQM-P MPA Kanwar Naveed Jameel and others submitted in the petition that pursuant to various amendments in the local bodies law, various functions relating to health and education had been prima facie withdrawn from the ambit of local governments without any plausible and cogent grounds.

The court was requested to declare that the impugned amendments were against the provisions of the constitution and the spirit of the Supreme Court’s judgment in this regard. The petitioners requested the court to direct the Sindh government to strictly follow the constitutional commands in context of articles 32, 137 and 140A of the constitution and enforce the Supreme Court’s judgment with regard to the functions and devolution of powers to the local governments.

They also sought declaration that the delimitation criteria, mechanism and distribution provisions of the impugned amendments were ultra vires of the constitution and liable to be set aside.

After the preliminary hearing of the petition, the court issued notices to the advocate general, the local government secretary and others and called their comments. It also directed the office to tag the petition with identical petitions on the instant issue.