The Sindh High Court has ruled that the post of grade 20 director could not have been filled through look-after charge in favour of a junior officer in the presence of the senior-most eligible officer and directed the government to assign the acting charge of the NCCIA director to the senior-most officer till regular promotion.
Disposing of a petition of former provincial director Shahzad Haider of the National Cyber Crime Investigation Agency against his transfer and the posting of a junior officer in his place as look-after charge, the court observed that the impugned action of the authority suffers from legal infirmity and arbitrariness and appeared to have been issued without jurisdiction.
The petitioner’s counsel, Zamir Ghumro, had submitted that the petitioner was on the first place of the seniority list and was holding the charge of the NCCIA senior director, and under the law, no junior officer could be posted in his place as this had already been held by superior courts.
He submitted that under the amended Peca, the cyber wing of the FIA had been abolished and all the staff sent to the NCCIA. The counsel submitted that sending the present director of the Sindh NCCIA, who was an employee of the NCCIA, to the FIA was a violation of Section 29 of Peca, which barred such transfers as the FIA had now no concern with cybercrime. He submitted that the federal government could not violate its own law by posting provincial directors at its whims and wishes. The counsel submitted that under the rules, only a senior additional director could be posted as the provincial director in case of non-availability of a grade 20 officer.
Federal law officer Wajiha Mehdi and NCCIA counsel Talha Abbasi submitted that the agency’s impugned office order was a lawful administrative decision issued under the Section 29(2) of the Prevention of Electronic Crimes Act (Peca) and it did not violate the petitioner’s fundamental rights. They submitted that the assignment of look-after charge given to another NCCIA officer was a temporary administrative measure justified by the operational needs and did not contravene Rule 8(B)(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 or any other judicial precedents.
They submitted that petitioner continue to hold substantive post and no malafide action was taken requesting the court to dismiss the petition. An SHC’s division bench, headed by Justice Adnan-Ul-Karim Memon, observed that it is an equally settled law that where a temporary arrangement is to be taken against a higher post, it must be given to the senior-most eligible officer and any deviation must be supported by strong and recorded reasons. The court observed that in the present case no such reasons have been shown which make the impugned order arbitrary and discriminatory.
It also observed that the surrender of the petitioner’s service back to the FIA after statutory transfer to the NCCIA appeared to be without lawful jurisdiction and needed to be reconsidered by the competent authority within two weeks after hearing the petitioner.
The court ruled that the impugned order with regard to granting look-after charge to the respondent junior officer to the post of director grade 20 and surrendering the service of the petitioner to the FIA is without jurisdiction and of no legal effect.
