KARACHI: Judgment reserved in SSGC employees’ petitions
By Our Reporter
KARACHI, Jan 2: The Sindh High Court reserved on Wednesday judgment in about 300 petitions of Sui Southern Gas Company employees who had challenged the credibility and locus standi of the IBA tests for their removal from service.
After hearing the parties, a division bench, comprising Justice Sabihuddin Ahmed and Justice Ali Aslam Jaferi, decided to announce the judgment on Jan 11.
When the proceeding commenced, Abdul Mujeeb Pirzada, representing 26 petitioners, continuing his argument on jurisdiction of the court, submitted that the petitioners had come to the court to seek implementation of the judgment of the Federal Service Tribunal (FST).
Justice Ahmed observed that some of the petitioners had gone to the Supreme Court which had prima facie ordered their absorption.
Counsel Pirzada contended that the raison detre for the IBA test was being misinterpreted by the department (SSGC). His contention was that “fitness” was to determine the capability to hold a “particular post,” but the department was interpreting it for “any” post and removal from service.
He also referred to the order dated June 8, 2001, pertaining to absorption, and contended that it amounted to not obeying the judgment of the FST. He argued that the IBA test had not been defined and what were its objectives. The IBA was not a department to conduct such tests.
He had contended that the IBA was not a competent departmental authority to conduct fitness tests.
The fitness of an employee was determined before employment and not after appointment, he had argued, saying that the action of the gas company was discriminatory because no other government employee had been subjected to the same treatment.
Fitness could be used for holding a particular post and not for termination of service, he argued. The question whether the petitioners had been legally appointed or not could only be determined through a detailed inquiry which had not been held so far, he submitted.
The thrust of his argument was on whether the High Court had the jurisdiction in the matter or not. His contention was that the action of the respondent company was mala fide and cited some of the case laws in support of his contention.
Justice Ahmed observed that even if the jurisdiction did not exist, if the action was mala fide, then the writ would stand.
Rebutting the arguments of the petitioners’ counsel, Barrister Chaudhary Mohammed Jamil contended that petitions were not maintainable and should, therefore, be dismissed.
He argued that since the matter was regarding the terms and conditions of service under article 212 of the constitution, when there were administrative tribunals no other court, including the High Court, had the jurisdiction to decide the question of terms and conditions of the civil servants/employees of government organizations.
The counsel for the respondent argued that the letter dated June 12, 2001, asking th petitioners/trainees to submit their testimonials, National Identity Cards etc, and also asking them to sit for IBA test, was in accordance with the decision of the Supreme Court as well as the prerogative of the company to test the competency and fitness of the petitioners for jobs in the company.
His contention was that the petitioners were thrust upon the company through the back door by the Benazir Bhutto government, without any test.
It was contended that since 1996 after the dismissal of the Benazir government, the petitioners had been contesting for the status of permanent employees in the company.
He argued that on October 22, 2001 the Supreme Court finally decided that the petitioners must go through the tests arranged by the SSGC and to be conducted by the IBA. In case they passed the test, they might be retained in the company.
Justice Ahmed observed that when the petitioner approached the FST, it directed it to absorb them and that judgment was approved/upheld by the Supreme Court.
He dilated on the interpretation of “absorption” and contended that it meant reinstatement.
Referring to various cases, he said Sanghi had been absorbed through proper test. He had applied and appeared in the test.
Justice Ahmed asked: “Does the letter given to Sanghi says that the test was taken?” Counsel for the respondents replied in the negative.
Justice Ahmed observed that this was the test before he joined as a trainee. The counsel for the respondent contended that the FST was not competent to order absorption. Justice Ahmed observed that he could have raised this question in the Supreme Court which dismissed the respondent’s appeal.
The counsel for the gas company submitted that the tribunal had not held whether the petitioners were fit or not. He said the review, which had been dismissed, had nothing to do with IBA test.
Justice Ahmed observed: “In 1994-95 most of these appointments were made and the question of IBA test came up in 2001.”
The counsel for the gas company claimed that the petitioners were not appointed. The company, he said, had been testing people for appointment on a regular basis. But, he said, most of the petitioners were sent by the Prime Minister’s Secretariat for trainee engineers and were not subjected to any tests.
Wasim Sajjad, counsel for some of the petitioners, made submissions on the jurisdiction of the court, and maintained that an order had to be in conformity with the terms and conditions.
He also pointed out that while the counsel for the respondent was opposed to giving jobs to those who had approached prime minister or others, but how would he explain the appointment of more than 60 persons, without any test, because they were relatives of either the managing director or other officials.
His contention was that the petitioners were absorbed in 1998. He argued whether they could be asked to appear for a fitness test after they had been in service for three years?
He said the order referred to by the counsel for the respondent did not mention rules for IBA tests.
He contended that “absorption in career executive cadre” did not mean appointment. He pointed out that Sanghi was appointed on January 10, 1995, and he was not subjected to IBA test. Test was for trainee appointment, not for absorption. Sanghi’s letter of absorption did not mention any test, Mr Sajjad submitted, saying that the respondents had stated that even Sanghi was appointed on political basis.
Referring to the contentions of the respondent’s counsel, Mr Sajjad contended that all the arguments by Mr Jameel were noted by the FST and the Supreme Court. The apex court ordered absorption. He said never in the history of the company was the IBA test given to anyone for absorption.
“Did the court say to give IBA test before absorbing? No. The Supreme Court said absorb them ad treated their period of training as probation. When the Supreme Court directed for absorption, it meant permanent employment,” he said.
Mr Sajjad contended that the respondent’s action was also in violation of article 4 of the constitution. He sought protection of law under this article which could not be suspended even in emergency. It was the most important fundamental right.
He contended that only those who had invoked the court’s jurisdiction were asked to take the IBA test. Mr Sajjad referred to various cases to explain the meaning of word cadre.
His contention was that in the latest Supreme Court judgment there were nine categories, and in only one category the apex court said the petitioner should take the test (Mohammed Akram and others). In no other case the SC ordered test.
Mr Sajjad also argued that fitness test was also hit by articles 4 and 25 of the constitution. The respondent, he argued, wanted to defeat what had been given to the petitioners by the court.
Counsel Akram Shaikh cited article 212 (2) of the constitution, and argued on judicial review jurisdiction of the High Court. If something was beyond the scope of terms and conditions and rules, the jurisdiction of the court would be ousted, he contended. The FST could not replace the judicial review jurisdiction of the High Court.
