KARACHI: A two-member bench of the Sindh High Court (SHC) disposed of several constitutional petitions with directions filed by Karachi Tax Bar Association، Sukkur Tax Bar Association، Hyderabad Tax Bar Association, Balochistan Tax Bar Association and others over appointment & misconduct of judicial members of ATIR.
On 9 March 2022, court released detail judgment and observed that “the above-referred constitutional petitions are being disposed of by this common order as the questions raised therein are similar.
Through these petitions, all the petitioners have assailed the vires of the notification dated 04.06.2015, whereby petitioner No.2 in C.P No.D- 5229 of 2015 namely Javed Zakria, Judicial Member of the Appellate Tribunal Inland Revenue (`ATIR`) Karachi has been terminated with immediate effect.
It is prayed on his behalf that he may be reinstated in service as a Judicial Member of ATIR with all back benefits, etc. Petitioners also seek a declaration to the effect that the judicial members of the ATIR are not civil servants, thus are not governed by terms of the Civil servant Act, 1973 and rules framed thereunder.
The facts relevant arising out of these petitions are that through the advertisement published in daily newspaper ‘The News’ dated 05.02.2012, 12 posts of Judicial Members in BS-21 in the ATIR were invited. Out of these 12 posts, one seat had to be filled on merit, 06 from Punjab, 2 seats were reserved for Sindh (Rural), and one seat each was prescribed for Sindh (Urban), KPK, and Baluchistan.
Per petitioners, the above appointments were routed through the Federal Public Service Commission (FPSC) in which petitioner No.2 in C.P No.D- 5229 of 2015 secured the top-most position on merit and was selected by the FPSC; and on whose recommendations, the competent authority of respondent department was pleased to appoint him as a Judicial Member in BS-21 in the ATIR with immediate effect, vide notification dated 07.06.2013.
It is stated that the advertisement dated 05.02.2012 referred to the appointment as “likely to continue indefinitely”, which meant that once the appointment was made the appointee derived a right in legitimate expectancy to continue for an indefinite period lasting up to his superannuation age, provided that there would be no adverse entry, concerning integrity and competence of the appointee.
Per petitioner he performed exceptionally well as a Judicial Member of the ATIR, however, termination of his service was made abruptly vide notification dated 04.06.2015, and the same was without jurisdiction, and lawful authority, on the premise that he was not served with the purported disciplinary proceedings, including show-cause notice, which was in breach of the principle of natural justice and violation of the law laid down by the Honorable Supreme Court in its various pronouncements, besides that they also violated Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, for which it was requested to the Prime Minister of Pakistan vide letter dated 06.07.2015 to reinstate the petitioner with all back benefits and perks, but his all efforts went in vain.
The petitioner being aggrieved by and dissatisfied with the impugned notification dated 04.06.2015 approached this Court.
Mr. Anwar Mansoor Khan learned Counsel for the petitioner in C.P. No. D 6418/2015 has led the arguments; and, all other learned counsel has followed him. learned counsel in unequivocal terms contended that the regular appointment of petitioner No.2 in CP No.D-5229/2015 as member ITR was illegally terminated before the completion of the tenure of service; that no reason has been assigned in the termination order; that no disciplinary proceedings were conducted against the petitioner about purported allegations made by the chairman as discussed supra; that there being no allegation of misconduct or inefficiency, the impugned order of termination was/is liable to be set aside; that even during the purported period of probation, the member ITR could not be terminated without resorting the procedure provided under the law.
Muhammad Nishat Warsi, learned DAG, has forcefully rebutted the contentions of the learned counsel for the petitioners and contended that the petitioner bar associations have no locus standi to invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan in terms of bar contained in Article 212 of the Constitution, hence, the Petitions are not maintainable in the eyes of law; that the post of Judicial Member (BS-21), Appellate Tribunal Inland Revenue was advertised in the light of SRO No. 5(1)/98 which provides experience and qualifications for the said post.
In pursuance of this advertisement, petitioner No.2 in C.P No. D- 5229 of 2015 namely Javed Zakaria applied for the said post. He was recommended for appointment as a Judicial Member (BS-21), Appellate Tribunal Inland Revenue by the Federal Public Service Commission.
The notification for his appointment was issued on 07th June 2013 with the clear indication at para 2 that his services will be governed under Civil Servants Act, 1973 and he will be on probation for one year extendable for a further period of one year. Further that the appointment shall be subject to verification of academic degrees, Character, and antecedents.
In terms of Section 11 of the Civil Servants Act, 1973, the competent authority can terminate the services of a Civil Servant during the period of probation without any notice.
After accepting the terms and conditions of Service the Petitioner joined the services as Judicial Member (BS-21).
Thus the notification dated 04-06-2015 was issued lawfully and under the provision of law/rules; after the recommendations FPSC, an offer of appointment letter was issued to all the selectees who accepted the terms and conditions of service.
The advertisement dated 05- 02-2012 for twelve (12) posts was issued by the FederalPublic Service Commission (FPSC) on requisition by respondent No.2 which indicates that the posts are Temporary likely to be continued indefinitely, thus the Petitioner No.2 has no legitimate right to continue his service for an indefinite period lasting up to superannuation. His services were terminated based on allegations leveled against him by the Chairman.
Not only the staff members were fed up with his behavior but also the lawyers, taxpayers, and the tax Department i.e. Chief Commissioner.
He was also found guilty of professional misconduct by submitting two charge assumption reports one on 04.08.2014, when he was on a private foreign visit of Thailand and Malaysia etc., and submitted the second assumption report on return from abroad on 11.08.2014. In this way, he is guilty of misconduct.
An inquiry was ordered in this regard. The Inquiry Officer in his report concluded that there are apprehensions that the petitioner was out of the country on the date of submission of the charge assumption report on 04-08-2014 and it seems that he was predetermined to submit the same report in his absence purporting to be present in the office on the date of joining.
Needless to say that during the period of probation, the service of the incumbent can be terminated if his performance/conduct is unsatisfactory.
To save the future of the petitioner, despite the commission of serious misconduct, his services were simply Page of 4 10 terminated by the competent authority, therefore, his services were terminated on the recommendations of respondent No.3; that the Notification of termination of the petitioner was issued under the Civil Servants Act and rules made thereunder because the Judicial Member were appointed under the Civil Servants Act/rules by FPSC and their appointment cannot be termed as Judicial Officer of a sub-ordinate judiciary; that it is an admission on the part of Petitioner No. 2 that considering himself Civil Servant he filed a departmental representation before the Prime Minister being departmental appellate authority; that the petitioner had a proper remedy which he availed and he cannot invoke two forums at one time. He lastly prayed for the dismissal of the instant petition.
The aforesaid question could only have been determined by FST, if the petitioner was in service as the Honorable Supreme Court in the cases of the colleagues of the petitioner has already dismissed their petition, therefore we cannot travel into that controversy at this point.
We simply disposed of this petition. The respondent department may examine the case of the petitioner in line with Fundamental Rules 54-A. So far as pensionary benefits are concerned, we have been informed that the petitioner getting pension, therefore, we would not make any observation on this aspect”.