The Law Ministry in pursuance of the court's direction on Monday filed reply before the Islamabad High Court (IHC) in a petition of Sukhera, challenging his removal from the office of FTO against the rules and regulations.
In its reply, the Law Ministry quoted an example of Justice Sajjad Ali Shah who had to leave the office of chief justice without proceedings of the SJC when his appointment was termed illegal.
Similarly, it added that the Supreme Court had terminated the judges without proceeding to SJC when their appointment was termed illegal. It maintained that the appointment of FTO is the discretionary power of President of Pakistan and no advice of Premier or cabinet is required.
Therefore, it adopted that Sukhera can be discharged directly and the court examples in this context are present, according to which, if the appointment is made unlawfully then there is no need to consider the rules.
The ministry's reply said that the then prime minister recommended Mustaq Sukhera's name as Federal tax Ombudsman two years before on August 30, 2017 and according to this, the President of Pakistan appointed him on the very day. According to clause 3 (1) of Ordinance 2000, it is the prerogative of the President of Pakistan and PM's advice is not necessary.
It further said that the important point is that the principle of appointment is clear and it cannot be deviated. According to clause 5 of Act 2013, the Federal tax Ombudsman would only be removed by filing reference in SJC but this law will only be implemented if the appointment is according to the law. The President appointed with the recommendation of the PM so this is illegal. In this situation it is not even necessary to issue show cause notice to him.
Earlier, a single bench of the IHC comprising Chief Justice Athar Minallah had suspended the federal government's notification regarding removal of Muhstaq Ahmad Sukhera as FTO and issued notices to the respondents, including Ministry of Law and Justice.
In its order, the court noted, "Till the next date fixed, operation of the impugned notification shall remain suspended. However, the petitioner is restrained from performing his functions till the next date fixed."
It added, "Let notice be issued to the respondents for filing report and para-wise comments within a fortnight. Notice is also directed to be issued to the Attorney General of Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908."
Sukhera moved the court through his counsel Zainab Janjua Advocate and cited the President of Pakistan through secretary to the president, the Prime Minister through principal secretary and secretary of law and justice as respondents.
In his petition, he assailed the notification dated June 12 whereby the President has withdrawn his notification of appointment against the post of FTO.
His counsel contended before the court that the appointment and removal of the FTO is governed under the Establishment of the office of Federal Tax Ombudsman Ordinance, 2000 and the Federal Ombudsman Institutional Reforms Act, 2013.