Mr. Justice Qazi Faez Isa in his judgment has decided the issue regarding functions and jurisdiction of Sindh Coal Authority and Special Initiatives Department, Government of Sindh in Suo Moto Case No. 19 of 2016.
1. Through an anonymous complaint serious allegations were made against the Sindh Coal Authority (hereinafter “the Authority”) and the Energy Department of the Government of Sindh. It was alleged that persons were illegally employed in the Authority and huge amounts were embezzled from the projects that were being executed by the Authority. The complaint was placed before the Hon’ble Chief Justice of Pakistan and he was pleased to take notice of it on the judicial side under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (“the Constitution”) and the complaint was numbered and fixed in Court. This Court issued notices to all concerned, including the Government of Sindh (“the Government”) and the Authority. Subsequently, some employees of the Authority also submitted complaints (CMA No. 7135 of 2016 and CMA No. 172-K of 2017) which added to the allegations made in the earlier anonymous complaint.
2. Before attending to the complaints it would be appropriate to set out the relevant provisions of the Sindh Coal Authority Act (Sindh Act No.VI of 1994) (PLD 1996 Sindh Statutes 72) (hereinafter “the Act”) through which the Authority was established. Section 6(1) of the Act stipulates that the, “general direction and administration of the Authority” vests in its Board. The Board, which is constituted under section 7 of the Act.
The Chief Executive of the Authority is the Director General (“DG”), who is required to be appointed by the Authority (section 10 of the Act). The DG is also the Secretary of the Board (sub-section (2) of section 7 of the Act).
3. The functions of the Authority are set out in section 4 of the Act. The Government has been empowered to make rules for carrying out the purpose of the Act (section 24 of the Act) and the Authority has been empowered to make regulations for carrying out the purpose of the Act and the rules (section 25 of the Act). We have been informed that no rules or regulations have been made as yet.
4. When this case was taken up by this Court Mr. Danish Saeed was working as the DG of the Authority, Mr. Arif Hussain Leghari as its Deputy Director, Hydrogeology, Mr. Aijaz Ali Solangi as its Inspector of Coal Mines and Mr. Zahid Hussain Tunio as its Prosecuting Inspector. All these appointments were made by the Government. As these individuals were serving in different departments of the Government their appointment in the Authority was in apparent contravention of the following judgments of this Court: Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752), Ali Azhar Khan Baloch v Province of Sindh (2015 SCMR 457) and Muhammad Akram v Registrar Islamabad High Court (PLD 2016 961). Specific notices were therefore issued with regard to such appointments, however, instead of justifying the appointments the Government conceded that some of the appointments were not made in accordance with the law and repatriated the officers to their respective departments. The Government, however, maintained that the appointments in the Authority of Mr. Danish Saeed as DG, Mr. Muhammad Ali Memon as Chief Engineer, and Mr. Zameer Ahmed Sheikh as Executive Engineer were in accordance with law.
5. Mr. Danish Saeed informed us that he is a graduate with a second division. He started his career on January 11, 1992 when he and three others were appointed by Jam Sadiq Ali, the then Chief Minister, who on the said date wrote:
“Four (4) posts of Assistant Commissioner may be taken out of the purview of the Sindh Public Service Commission and ad-hoc appointment of 1. Makhdoom Shakeeel-uz-Zaman, 2. Mr. Danish Sayed, 3. Mr. Matanat Ali Khan and 4. Mr. Shoukat Ali Shaikh. As Assistant Commissioner may be regularised in relaxation of rules. The condition of recommendation of Departmental Selection Committee in this case is hereby waived.
In this connection necessary notification may be issued accordingly.”
Consequently, a notification dated January 22, 1992 was issued appointing Mr. Danish Saeed, the persons mentioned above and Syed Imtiaz Ali Shah as Assistant Commissioners (BPS-17). The notification stated that these persons were appointed, “in the public interest”, however, it was not disclosed how this was in the “public interest”. The notification further stated that the normal procedure will not be followed and that these persons have been appointed “without reference to the Sindh Public Service Commission” (hereinafter “the Commission”). It was not mentioned in the notification why the Commission was bypassed.
6. After we had heard this case, that is later in the evening, but before this judgment had been written, notification dated March 14, 2017 was issued by the Chief Secretary, Government of Sindh, removing Mr. Danish Saeed from the position of DG of the Authority. Apparently, better sense prevailed at the eleventh hour as the appointment of Mr. Saeed as the DG of the Authority was not in accordance with the Act, which stipulates that the appointment to the post of DG has to be made by the Authority and the Authority had not appointed him. Mr. Danish Saeed rose from grade 17 (BPS-17), after having passed Part-II of the Assistant Collector’s Examination in November 2002, and attained the position of Secretary (BPS-20) in less than ten years, which is quite surprising. The fact that Mr. Danish Saeed was removed by the Government as the DG of the Authority does not conclude the matter. The Secretary, Services, General Administration & Coordination Department (hereinafter “Services”) is directed to examine whether Mr. Danish Saeed’s appointment and promotions were in accordance with law and applicable rules/regulations and to submit report in this regard within sixty days for our perusal in Chambers, whereafter if required further orders may be passed in Court.
7. Mr. Muhammad Ali Memon was appointed on contract as the Chief Engineer of the Authority after he retired from government service. An advertisement was published by the Secretary of the Energy Department of the Government, which invited applications to the post of Chief Engineer. The advertisement prescribed that the applicants must be “between 55-60 Years”, but later a corrigendum was issued extending the age to 65 years, probably because Mr. Memon was older than the maximum age. Mr. Memon was appointed as Chief Engineer of the Authority through a notification dated April 12, 2016 on “contract basis” for a period of two years with effect from March 28, 2016. Subsequently, on July 13, 2016 the Government issued an “order” which prescribed the terms and conditions of Mr. Memon’s “contract”. The said order stipulated that Mr. Memon would be governed by the rules/regulations that were applicable, “to other Provincial Civil Servants of his status” and that he would be “liable to disciplinary action and penalties under the Sindh Civil Servants Act, 1973”. On the one hand the Government’s stand is that Mr. Memon was appointed on “contract” but on the other hand the terms of his appointment issued by the Government are like those of a civil servant.
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