SHC sets aside appointment of six unqualified officers as DCOs

The Sindh High Court set aside notification regarding appointment of 'unqualified' officers on posts of District Co-ordination Officer in six districts of the province. Passing this order on Tuesday, a division bench, comprising Justice Shahid Anwar Bajwa and Justice Tufail H Ebrahim, also directed the Sindh government to duly post those persons who possess prescribed qualification.
Petitioner Gul Hassan Channa had challenged the appointment of six BPS-19 officers, including Muhammad Jaffer Abbasi working as DCO Thatta, Abdul Majeed Pathan working as DCO Umerkot, Ali Muhammad Lund working as DCO Tando Muhammad Khan, Dr Shafqat Abbasi working as DCO Tando Allahyar, Saeed Sualeh Jumani working as DCO Kashmore-Kandhkot, and Yaseen Shar working as DCO Kambar-Shahdadkot.
His counsel Abrar Hassan submitted that on March 5, 2008 a notification was issued by Services & General Administration Department laying down criteria for posting as DCO. Operative part of the notification, dated March 5, 2008. According to criteria, he/she must have successfully completed pre-service specialised training in discipline of District Administration Local, Special on Criminal Law from the Civil Services Academy, Lahore ,or Provincial Civil Services Academy, Peshawar. He/she must have successfully qualified departmental examination of Assistant Collector Part-I and Part-II, necessary for conferment of magisterial powers.
He submitted that another notification, dated July 10, 2006, was issued by Sindh Home Secretary. Relevant portion of that notification reads as: SOJ-I/2-3/2006: In exercise of powers conferred US 14 of CrPC and with approval of Honourable Sindh High Court, Government of Sindh is pleased to appoint following officers as Special Magistrates.
According to the notification, District Co-ordination Officer, Executive District Officer (Revenue), District Officer (Revenue), Deputy District Officer (Revenue) and Mukhtiarkar were conferred powers as First Class Magistrate, while Assistant Mukhtiarkar conferred powers of Second Class Magistrate. He contended that vide notification dated January 14, 2010 respondent Muhammad Yasin Shar, who was at that time working as District General, Larkana Development Authority, was transferred and posted as District
Co-ordination Officer Kambar-Shahdadkot in his own pay and scale. He prayed to declare impugned notification dated January 14, 2010 as illegal, unconstitutional, perverse, against spirit of good governance, so also in clear violation of principles laid down in notification dated March 8, 2008, read with notification dated July 10, 2006 issued by Sindh Chief Secretary and set aside notification dated January 14, 2010. He also sought direction for Muhammad Yasin Shar to show under what authority of law he is holding post of DCO Kambar-Shahdadkot, and direct Respondent 1 not to violate in his own directions/instructions contained in notification dated March 5, 2008 and July 10, 2006 in matter of appointment/transfer/posting of officers on post of DCO in province of Sindh.
SHC division bench said in its order: "On November 29, 2010 arguments were completed and Assistant Advocate General pointed out no categorical statement was made in comments regarding whether Respondent-2 did not possess such qualification. AAG sought time to find out position in this regard.
On December 8, 2010 Additional AG Abdul Fatah Malik appeared along with Syed Muhammad Tayyab, Additional Secretary Services-II S&GAD, and stated (that) Respondent-2 does not possess qualification which was stated in notification dated March 3, 2008. "Advocate Abrar Hassan, counsel for petitioner, submitted (that) Respondent-2 (Muhammad Yasin Shar) does not possess required qualification as laid down in notification dated March 3, 2008. He further submitted (that) in notification dated July 10, 2006 it was clearly stated that only those officers, who had completed specialised training are to be posted as District Co-ordination Officers.
Advocate Ghulam Qadir Jatoi, learned counsel for Respondent-2 (Muhammad Yasin Shar) referred to comments, which stated there is no bar or limitation on officer to become DCO in Ordinance and Respondent-2 is also a CSS officer of OMG, who had completed all mandatory training and he is also in same grade ie BPS-19. He contended there was no such rule or policy under which it was mandatory to post senior officers and not posting junior officers & only requirement was grade to which his client qualified. AAG Abdul Fatah Malik referred to Section 29 of Sindh Local Government Ordinance, submitting no such requirement was laid down in Ordinance. Petitioner's counsel Abrar Hassan submitted notification dated July 10, 2006 confers judicial powers on certain officer including District Co-ordination Officer and it was stated in notification that only those, who have completed requisite specialised training and passed mandatory prescribed qualification examination are to be appointed as DCO."
SHC bench ordered: "We have considered submissions advanced by learned counsel for parties and have also gone through record. In notification dated March 3, 2008 it is stated that competent authority had approved criteria given for posting of an officer against post of District Co-ordination Officer.
"It appears from categorical statement of Abdul Fatah Malik that Respondent-2 does not possess qualification laid down in notification dated March 5, 2008. It may be pointed out that Chief Secretary in notification dated March 5, 2008 also stated that Services General Administration & Co-ordination Department shall issue a certificate regarding two qualifications in respect of any officer to be posted as DCO at time of his posting. If such notification was not to be followed, then what was need for using of such notification and what was purpose behind for issuing such certification? If a notification is issued by competent authority it cannot be brushed aside as mere pious pontification; it must be given meaning and it must be given effect. If Government on its part violates its own notification which itself stated that it was approved by competent authority which is difficult to understand as to whether notification means something or is mere a wastage of papers on which it is written.
Since qualification has been prescribed and nothing has been brought on record that there was such a dearth of such qualified persons that government was compelled to create a one-time exception. Consequently, this constitutional petition is allowed and notification dated January 14, 2010 is set aside. Government is directed to post duly those persons as DCO, who possess prescribed qualification."