November 25, 2008	Tuesday	Ziqa'ad 26, 1429

KARACHI, Nov 24: A provincial government intra-court appeal against the order of a single judge of the Sindh High Court requiring the education department to pay rent to the Islamic Education Foundation Trust for the properties occupied by the Government Islamia Colleges for Arts, Science and Commerce was on Monday adjourned due to the absence of the law officer concerned.

Justice Arshad Noor Khan had, on the basis of an SHC division bench decision, held the education department liable to pay the rent due since the take-over of the colleges in 1972 under a martial law regulation (No 118). Deciding an application moved by the SHC official assignee, who was appointed caretaker of the trust properties by the division bench in view of the differences among the trustees, Justice Khan observed that the provincial government and its education department had admitted that the properties belonged to the trust.The government denied having conceded ownership of the properties in favour of the trust. It claimed that it applied for amendment in its rejoinder or written statement, which contained certain mistakes, but the judge dismissed the application and proceeded to decide the case on the basis of admission erroneously made in the government’s pleadings. The appeal further maintains that MLR 118 conferred the ownership of the college properties on the government and its education department along with the management of the institutions run by the trust. The provisions of the Sindh Rented Premises Ordinance did not apply and the regulation was protected by Article 270 of the Constitution.

The appeal came up before a division bench comprising Justices Khilji Arif Hussain and Dr Qamaruddin Bohra. Additional Advocate-General Sarwar Khan submitted that he was prepared to pursue the matter but it had been assigned to another law officer by the advocate-general. The bench adjourned the hearing to a date in office.

Judge’s seniority upheld

The service tribunal for the subordinate judiciary comprising Justices Syed Mahmood Alam Rizvi and Arshad Noor Khan, meanwhile, upheld the seniority of Justice Agha Rafiq Ahmed Khan as a judicial officer. The judge had challenged a 2002 high court order altering the seniority of the province’s judicial officers assigned by the Sindh Public Service Commission. The order was issued by the then registrar, M. Sadiq Leghari, who was subsequently elevated to the high court and retired as an SHC judge in 2006.

Advocate M.M. Aqil Awan, counsel for the appellant, submitted that the 2002 order upset the seniority list drawn up in 1983 and adhered to till 2002. There was no hearing and the representation made by the then registrar was accepted.

Justice Rafiq was appointed a high court additional judge in 1994 but was reverted as a judicial officer since he superseded many senior judicial officers. The reversion was ordered by the Supreme Court in its famous Judges Case verdict. He was again elevated as an additional judge in December 2007.

The adjudication of Justice Rafiq’s seniority as a judicial officer does not affect his standing in the high court since seniority is reckoned from the day a judge takes the oath but it makes him senior to many judicial officers elevated to the high court before him. At present he is serving as the federal law secretary.

Petition dismissed

The bench consisting of Justices A.H. Khilji and Dr Bohra dismissed a petition moved by about 200 candidates of Naushero Feroze who were issued appointment letters after qualifying an IBA-conducted written test and viva voce for the posts of primary schoolteachers but were still awaiting posting orders.

Appearing for the respondent provincial education department, Advocate Khalid Jawed Khan informed the bench that a large number of primary and high school teachers were to be recruited under a World Bank-funded literacy programme. It was agreed between the government and the bank that the teachers would be appointed strictly on transparent merit, that the test would be conducted by the IBA, Sukkur, and that those securing 60 per cent marks would be called for the viva voce carrying 10 marks.

The former chief minister, however, issued orders that even those obtaining less than 60 per cent marks should be considered for appointment. The marks for interview were arbitrarily raised from 10 to 40 without consulting the World Bank, which withdrew its financial assistance for the programme. The lawyer said the appointment letters were issued by the executive district officer concerned of Naushero Feroze on a direction from the then chief minister. The petitioners had no vested right but since the World Bank has revived the programme, the petitioners were free to appear in the new test and would be recruited if they obtained 60 per cent marks.