IJAZ ANWAR, J. Sofia Waqar Khattak (Additional District and Sessions Judge/the then Principal Staff Officer, Peshawar High Court, Peshawar), appellant herein, has filed the instant appeal under Section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 against the order/Notification dated 02.08.2019, whereby, major penalty of reduction from the post of District and Sessions Judge (BPS-21) to Additional District and Sessions Judge (BPS-20) for two (02) years was imposed upon the appellant under Rule 4(1)(b)(i) of the Khyber Pakhtunkhwa Servants (Efficiency and Discipline) Rules, 2011 on the ground of illegally recommending Mr. Shahid Khan against the post of Private Secretary (BPS-18) in the Khyber Pakhtunkhwa Judicial Academy, Peshawar.
2. In view of the averments made in the instant service appeal, comments were sought from the respondent-High Court, who furnished the same accordingly.
3. Learned counsel for the appellant while arguing the appeal has called in question the issuance of Show-Cause Notice by Hon'ble the Chief Justice in his capacity as Chairman of Board of Governors of the Khyber Pakhtunkhwa Judicial Academy (hereinafter to be referred as "KPJA") on the ground that, at the relevant time, appellant was posted as Principal Staff Officer in the Peshawar High Court. He further argued that the amended Show-Cause Notice allegedly got issued after the concurrence of the Administration Committee of the Peshawar High Court had not revoked or cancelled the earlier Show-Cause Notice and, as such, the proceedings, initiated thereon culminated into the impugned punishment, is against the law. It was further argued that if there were any allegations of illegal appointments, action was required to be taken against the Appointing Authority and not the appellant, who has no role in the process. He argued that appellant has performed her assigned duties and that, in no way, she, at any stage, has deviated from her lawful duties. He further argued that obligation to advertise the post or to call for the applications for appointment and the ultimate issuance of appointment is the domain of the Appointing Authority, who was the then Chairman of the KPJA and, as such, appellant cannot be made a scapegoat. He next contended that the matter required regular enquiry to fix the responsibility upon the appellant, however, dispensing with the enquiry has violated the valuable rights of the appellant and thus she has been condemned unheard. In this regard, he placed reliance on cases titled, "Alamgir v. Divisional Forest Officer, Mutton and others (1993 SCMR 603)", "Province of Punjab through Additional Chief Secretary, Government of Punjab and another v. Muhammad Siddique Khan (2000 SCMR 1321)", "Zahoor Ahmad v. WAPDA and others (2001 SCMR 1560)", "Rashid Mehmood v. Additional Inspector General of Police and 02 others (2002 SCMR 57)", "Registrar Peshawar High Court and others v. Shafiq Ahmad Tanoli and others (PLD 2015 SC 360)" and "Chief Postmaster Faisalabad, GPO and others v. Muhammad Afzal (2020 SCMR 1029)".
4. Learned counsel for the respondent High Court argued that the question of illegal appointments came up before High Court in Writ Petition No.3911-P/2017 filed by an employee of KPJA when it was disclosed by one of the Member of the then Selection Committee, now counsel in that petition such disclosure finds its mention in the order sheet of that case, Hon'ble the Chief Justice took notices of it and has thus directed for its probe through a fact finding enquiry. He further argued that it was after the responsibilities being fixed upon the delinquent officers that appellant was proceeded against and issued a Show-Cause Notice, It was further argued that appellant in her capacity as Principal Staff Officer/Member of the Selection Committee has favored the appointee on the basis of her being relations with some of the officers of the KPJA. He next contended that in terms of Rule 5(1) of the Khyber Pakhtunkhwa Servants (Efficiency and Discipline) Rules, 2011, the Competent Authority may dispense with the enquiry, if sufficient material is available on the record. In this regard, he placed reliance on the cases titled, "Federation of Pakistan through Secretary, Ministry of Law and Justice Division Islamabad v. Mamoon Ahmad Malik (2020 SCMR 1154)", "Ghulam Mustafa Shehzad v. Lahore High Court, Lahore through Registrar (2007 SCMR 1786)" and "Executive Engineer v. Zahid Sharif (2005 SCMR 824)".
5. Arguments heard and record perused.
6. In order to establish a Judicial Academy for imparting training to the judicial officers and personnel concerned with the system of administration of justice with a view to promote continuing legal and judicial education, develop their capacity, professional competence and ethical standard for efficient dispensation of justice and matters connected therewith or incidental thereto vide Khyber Pakhtunkhwa Act No.IV of 2012, the Khyber Pakhtunkhwa Judicial Academy Act, 2012 (hereinafter to be referred as "the Act") was promulgated on 17.01.2012.
7. In order to fully made functional the KPJA, human resource was hired and to develop and organize the infrastructure, different Judicial Officers were posted there on deputation basis and in that process, number of appointments were made regarding which on the orders of the present Chairman of the KPJA (Hon'ble the Chief Justice of Peshawar High Court), a fact finding enquiry was constituted which submitted its report, pinpointed massive irregularities in the appointment of officers and ministerial staff The appellant, at the relevant time, was serving as Principal Staff Officer in Peshawar High Court, Peshawar; as such, she has also been proceeded against departmentally.
8. Section 4 of the Act provides for the aims and objectives of the KPJA. Section 5 provides for constituting the Board, consisting of the following
(a) Chief Justice of the Peshawar High Court; Chairman
(b) Senior most Judge of the Peshawar High Court; Vice-Chairman
(c) Additional Chief Secretary to Government; Member
(d) Secretary to Government Law, Parliamentary Affairs and Human Rights Department; Member
(e) Secretary to Government Finance Department; Member
(f) Advocate General, Khyber Pakhtunkhwa; Member
(g) Registrar, Peshawar High Court; Member
(h) The Additional Registrar (Admn), Peshawar High Court; Member
(i) Member Inspection Team, Peshawar High Court; Member
(j) the Principal/Dean, Faculty of Law, University of Peshawar; Member
(k) Director General of the Academy; Member-cum-Secretary
(l) A representative of the Higher Education Commission, not below the rank of basic pay scale 20 officer; Member
9. Similarly, Section 7 provides for the "appointment of the Director General", while Section 8 provides for the "Powers and Functions of the Director General". Similarly, Section 10 mentions the "Appointing Authority" for appointment in KPJA. Section 10, being relevant in the matter, is reproduced, as under:-
10. Appointing Authority
(1) The Appointing authority of the staff shall be the Chairman.
(2) The Chairman may delegate his power to the Director General for appointment of any class of staff.
Similarly, Section 16 provides for framing of rules by the Board. The Board, in exercise of powers under Section 16 of the Act, has framed the Khyber Pakhtunkhwa Judicial Academy Staff (Terms and Conditions of Service) Rules, 2012 duly notified in official gazette.
10. Perusal of the record reveals that appellant has been issued a Show-Cause Notice by the respondent, wherein, the following allegations were levelled against her.
A) You being member of the Selection Committee abused the authority of your office on extraneous grounds in violation of the relevant rules by improperly and illegally recommending Mr. Shahid Khan, who was son the sister-in-law of the then Hon'ble the Chief Justice Mr. Justice Dost Muhammad Khan, for the post of Private Secretary though he was at S.No.6 on merit list having no knowledge of shorthand which was a requisite skill and was also lacking requisite experience, thus ineligible for recruitment to the said post.
11. In order to ascertain the role of the appellant in the appointment of one Mr. Shahid Khan against the post of Private Secretary (BPS-18), who was allegedly son of the sister-in-law of the then Hon'ble the Chief Justice, we examined the record and also requisitioned original record of selection process. The original record depicts that in order to fill the posts in the newly established KPJA, a list of Selection Committees of experts for the selection process were proposed to the then Hon'ble Chairman of the KPJA who duly approved the same on 31.12.2012. The record shows that for the appointment of the post of Private Secretary (BPS-18), the approved Selection Committee consists of Mr. Saleem Khan, Chairman, Sofia Waqar Khattak, P.S.O to Hon'ble the Chief Justice, Member and Mr. Faqir Jan, P.S to Hon'ble the Chief Justice as third Member. The post of Private Secretary (BPS-18) along with many other posts were advertised in different newspapers dated 07.09.2012, wherein, the prescribed qualification for the aforesaid post was given as "(i) Master or L.L.B degree from a recognized University (ii) Speed of 120 words per minute in shorthand and 40 words per minute in typing". The advertisement was given by the then Senior Director Administration of the KPJA. The record further suggests that about 54 candidates applied for the post of Private Secretary (BPS-18). Their educational testimonials and experience certificates are available in original. After necessary scrutiny, 12 of the candidates who applied for the post of Private Secretary (BPS-18) were considered eligible and shortlisted for the typing/shorthand test.
They appeared in the typing/shorthand test and thereafter their names along with the result of the test was placed before the Selection Committee. The record further discloses that there were three proformas available for the Members of the Selection Committee, of which only one filled proforma of the appellant is available, wherein she, after necessary interview, has marked the disputed appointee Mr. Shahid Khan, as good, granting him 05 marks. One another candidate Mr. Paras Khan, was also ranked assood, however, from the proforma of the appellant, it appears that said Mr. Shahid Khan, was on the top of the merit list having 06 marks in written test plus 05 marks in the interview. So far as, other proformas of the Members of the Selection Committee, they were left blank with no explanation to this effect, either from the Chairman of the Selection Committee or from the Appointing Authority, as to whether, they were purposely left blank or were subsequently replaced.
12. From the record, it cannot be ascertained that how it was mentioned in the Show-Cause Notice that a candidate at S.No.6 in the merit list was recommended for appointment against the post of Private Secretary (BPS-18): Similarly, when we examined the minutes of meeting of the Selection Committee, we find that said Mr. Shahid Khan was recommended unanimously for appointment against the post of Private Secretary (BPS-18), albeit, the Selection Committee was not the one which was earlier approved by Hon'ble the Chief Justice, because, it includes one Dr. Adnan Khan, Director Research and Publication, KPJA. We after going through all the record of the selection process, find that in order to prove the charges against the appellant, there should have been a regular enquiry. Needless further to observe that whether there was any problem with the ineligibility of the said appointee for lacking the qualification of shorthand. It was infact initially for the Chairman of the Selection Committee who invited applications and scrutinized the same. The record is silent to the effect who carried out scrutiny of the applications and short listed the eligible candidate, who conducted the written test. To this effect, the record is completely silent, as to whether this exercise was carried out by the Selection Committee or by the office of the Senior Director Administration of the KPJA.
13. We have also perused the findings of the fact finding enquiry wherein it was admitted that none of the accused officials/officers were associated with the enquiry, and it was proposed "that while adopting the prescribed procedure, the matter may be inquired by the concerned quarters, so that any finding and decision arrived may withstand the test of legality, propriety and correctness".
14. By referring to the above allegations, we subscribe to the arguments of the learned counsel for the appellant to the effect that the Appointing Authority was not having sufficient material available on record to have formed an opinion that there was no need of initiation of regular enquiry into the case of the appellant. We also admit and concede that the Competent Authority is within its right to dispense with departmental enquiry in terms of Rule 5(1) of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 when there is sufficient material available which prima facie connects the accused with the commission of misconduct; while in the instant case, the material, so produced on record, is deficient in all respects and an opinion cannot be legally formed to justify the dispensation of enquiry.
15. In support of their respective cases, both the learned counsel for the parties have relied, upon numerous judgments of the Superior Courts, albeit, as referred to above, the powers of the Competent Authority cannot be called in question to dispense with the enquiry, however, in the instant case, we find that neither he was in possession of such documentary evidence against the appellant, nor any satisfactory reasons have been recorded, thus the appellant was not provided sufficient chance to vindicate herself against the allegations. It is by now well settled that the aim and object of the Efficiency and Disciplinary Rules are to maintain administrative and financial discipline in the Department, similarly, the procedure so prescribed is aimed to give a proper chance of proving his/her innocence to the accused officer/official and mere issuance of charge sheet/Show-Cause Notice or enquiry cannot be allowed to be used as a device to done away with the services of an employee.
16. For the reasons recorded hereinabove, the impugned Notification dated 02.08.2019 issued by the respondent-High Court, whereby, major penalty of reduction from the post of District and Sessions Judge (BPS-21) to Additional District and Sessions Judge (BPS-20) for two (02) years was imposed upon the appellant under Rule 4(1)(b)(i) of the Khyber Pakhtunkhwa Servants (Efficiency and Discipline) Rules, 2011, is not sustainable and is accordingly set-aside. In the peculiar facts and circumstances of the case, if respondents have sufficient material on record to connect the appellant with the commission of offence, it may proceed against him but inquiry procedure is to be adopted as required under Rule 11 of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011.