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Petitioner: The Federation of Pakistan VS Respondent: Waqas Mehmood and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb, Arbab Muhammad Tahir Title: The Federation of Pakistan vs Waqas Mehmood and others Case No.: I.C.A. No.324 of 2022 Date of Judgment:2023-03-27 Reported As: 2023 IHC 36 Result: Appeal Dismissed
JUDGMENT
JUDGMENT MIANGUL HASSAN AURANGZEB, J:- Through this judgment, we propose to decide intra Court appeals No.324/2022 and 326/2022 since they both are against the same judgment. 2. Through Intra Court Appeals No.324/2022 and 326/2022 the appellants, the Federation of Pakistan and the Islamabad Capital Territory - Private Educational Institutions Regulatory Authority ("ICT-PEIRA"), respectively, assail the judgment dated 22.07.2022 passed by the learned Judge-in- Chambers whereby writ petition No.928/2022 filed by respondent No.1, Waqas Mehmood Kayani ("Mr. Kayani"), was allowed and the decision of the Federal Cabinet ("Cabinet") dated 23.11.2021 to terminate respondent No.1's services as Member (Registration), ICT-PEIRA as well as the notification dated 03.12.2021 issued by the Ministry of Federal Education and Professional Training ("Ministry of FE&PT") pursuant to the said decision, were set-aside. FACTUAL BACKGROUND:- 3. The record shows that on 26.03.2010, the erstwhile Ministry of Education (succeeded by the Ministry of FE&PT as a consequence of the Constitution (Eighteenth Amendment) Act, 2010 published an advertisement inviting applications for appointment against the post of Member (Registration) in ICT PEIRA on permanent basis. Mr. Kayani was one of the candidates who participated in the competitive process for appointment to the post of Member (Registration). A four-member Selection Board had been constituted to scrutinize the candidature of the seven shortlisted candidates. The minutes of the Selection Board's meeting dated 05.07.2010 show that Mr. Kayani was unanimously recommended for appointment as Member (Registration) on permanent basis. Thereafter, vide letter dated 07.07.2010 from ICT-PEIRA, Mr. Kayani was appointed to the said post on permanent basis.
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4. During 2019, ICT-PEIRA had taken decisions which resulted in the reduction of the fees charged by private educational institutions from students. During that period, writ petition No.403/2019 was filed before this Court by Abdul Waheed seeking the issuance of a writ of quo warranto qua the appointment of Mr. Kayani as Member (Registration). Order dated 13.01.2020 passed in the said petition shows that Mr. Kayani's appointment was challenged on the ground that under the Islamabad Capital Territory Private Educational Institutions Chairman and Member (Academic) and Member (Registration) (Appointment and Qualifications) Rules, 2015 ("the 2015 Rules"), the appointment to the said post was to be made for a fixed tenure of three years whereas Mr. Kayani had been appointed on permanent basis. The position taken by ICT-PEIRA in the said proceedings was that Mr. Kayani had been appointed on permanent basis in terms of Section 7 of the Islamabad Capital Territory Private Educational Institutions (Regulation and Promotion) Ordinance, 2006 ("ICT-PEIRA Ordinance 2006") which provided that the Chairman and Members shall be appointed by the Government on such terms and conditions as it may determine. This Court, vide order dated 13.01.2020, deemed it appropriate to place the matter regarding Mr. Kayani's appointment as Member (Registration) before the Cabinet. 5. On 01.04.2020, the Ministry of FE&PT submitted a summary seeking a declaration from the Federal Cabinet that the appointment of Mr. Kayani as Member (Registration) in ICT PEIRA "can be regulated on the basis of tenure on the same principle laid down in Rule 7 of the ICT-Private Educational Institutions Chairman and Member (Appointment and Qualification) Rules, 2015." 6. No decision was taken by the Cabinet on the said summary. But the order dated 02.10.2020 passed by this Court in writ petition No.403/2019 and the Cabinet Division's Office Memorandum ("O.M.") dated 10.06.2020 shows that the Ministry of FE&PT had been asked to seek the comments of the Law and Justice Division and incorporate the same in the summary for the Cabinet. 7. On 13.04.2020, the Establishment Division issued an O.M. in which reference was made to its earlier views expressed vide O.M. dated 18.11.2015. In the latter O.M., the Establishment Division had taken the view that the 2015 Rules would have prospective effect and that the permanent appointment of Member (Registration) could not be converted into a tenured appointment due to such Rules. It ought to be borne in mind that by the time the Establishment Division's O.M. dated 13.04.2020 was issued, the Law and Justice Division had not given its opinion. 8. The Law and Justice Division gave its opinion to the Ministry of FE&PT through O.M. dated 13.07.2021. While concurring with the views of the Establishment Division contained in the O.M. dated 18.11.2015, the Law and Justice Division opined that the 2015 Rules are to have prospective effect and cannot in any manner adversely affect the terms and conditions of service of the existing Members. 9. On 16.11.2021, the Ministry of FE&PT submitted another summary to the Cabinet in which it took the position that Mr. Kayani's appointment as Member (Registration) was illegal as it had been made in the absence of Rules and as such his services needed to be terminated with immediate effect. It was also mentioned that after the termination of his services, the process for the appointment of Member (Registration) shall be initiated in accordance with the 2015 Rules. Approval of the Cabinet had been sought to terminate Mr. Kayani's services and to re-initiate the process for the appointment of Member (Registration) in accordance with the 2015 Rules. It is most pertinent to mention that the said summary does not make any mention of either the Law and Justice Division's opinion dated 13.07.2021 or the Establishment Division's views contained in its O.M. dated 18.11.2015. 10. On 23.11.2021, the Cabinet decided to approve the proposal made by the Ministry of FE&PT in its summary dated 16.11.2021. Consequently, vide notification dated 03.12.2021 issued by the Ministry of FE&PT, Mr. Kayani's services were terminated with effect from 23.11.2021. After Mr. Kayani's
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services were terminated, writ petition No. 403/2019 filed by Abdul Waheed was dismissed as having been rendered infructuous. 11. Mr. Kayani assailed the said notification dated 03.12.2021 whereby his services were terminated through writ petition No.928/2022 which was allowed by the learned Judge-in Chambers vide the impugned judgment dated 22.07.2022 and it was directed that Mr. Kayani be reinstated in service with all back benefits. The said judgment has been assailed by the Federation of Pakistan through the Secretary, Ministry of FE&PT as well as by ICT-PEIRA through Intra Court appeals No. 324/2022 and 326/2022, respectively. CONTENTIONS OF LEARNED COUNSEL FOR ICT-PEIRA:- 12. Learned counsel for ICT-PEIRA submitted that in July 2010, Mr. Kayani had been appointed as Member (Registration) that the appointment process of Mr. Kayani as Member (Registration) in ICT-PEIRA was initiated by Mr. Imtiaz Ali Qureshi who was then serving as Member (Academics); that Mr. Kayani could not have been appointed on permanent basis in the absence of any service rules; that the entire process for the appointment of Member (Registration) on permanent basis was manoeuvred whereas the Islamabad Capital Territory Education Institutions (Regulation and Promotion) Regulatory Authority Employees (Service) Rules, 2006 ("the 2006 Rules") envisaged the appointment not to be on permanent basis; that rules governing the appointment of Chairman and Members of ICT-PEIRA were issued on 18.11.2015; that Rule 7 of the 2015 Rules provides for the appointment of Member (Registration) to be made for a fixed tenure of three years; that in terms of Section 7 of ICT-PEIRA Act, 2013, the appointment of Member (Registration) could not have been made on permanent basis in the absence of rules; that Mr. Kayani's appointment letter dated 07.07.2010 was signed by Member (Academics) whereas the applicable statute provided that the members of ICT-PEIRA are to be appointed by the Federal Government; that Mr. Kayani's appointment as Member (Registration) has not been notified in the official gazette; that the appointment of Mr. Kayani was made at a time after Islamabad Capital Territory Private Educational Institutions Ordinance, 2009 had lapsed; that when Mr. Kayani was appointed as Member (Registration) on 07.07.2010, there was no statute governing the functioning of ICT-PEIRA; and that when the ICT-PEIRA Act, 2013 was enacted on 19.03.2013, it did not save any of the appointments made in the previous years. 13. Furthermore, it was submitted that ICT-PEIRA was first established under the provisions of Islamabad Capital Territory Private Educational Institutions Ordinance (Ordinance No.XII of 2006) which was promulgated on 21.09.2006; that the said Ordinance lapsed by efflux of time in terms of Article 89 of the Constitution; that the Islamabad Capital Territory Private Educational Institutions Ordinance, 2007 was first promulgated on 05.02.2007 and then re-promulgated on 05.06.2007, but these Ordinances also lapsed by efflux of time; that the Islamabad Capital Territory Private Educational Institutions Ordinance 2007 was once again promulgated in the form of Ordinance XLV of 2007 on 03.10.2007 but before it could lapse, Emergency was proclaimed on 03.11.2007; that by virtue of Article 4 of the Provisional Constitutional Order, 2007, all Ordinances that had not lapsed when the Emergency was proclaimed were given permanence; that the proclamation of Emergency as well as the Provisional Constitutional Order were declared null and void by the Hon'ble Supreme Court vide its judgment on 31.07.2009 reported as Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 S.C. 879); that in the said judgment, it was held inter alia that all Ordinances that were holding the field on 03.11.2007 would remain valid for a period of 120 days with effect from 31.07.2009 unless they were enacted as Acts of Parliament with retrospective effect; that since the Islamabad Capital Territory Private Educational Institutions Ordinance 2007 had not been placed before Parliament within 120 days with effect from 31.07.2009, it had lapsed on 27.11.2009; that Islamabad Capital Territory Private Educational Institutions Ordinance was then promulgated as Ordinance No. XLVI of 2009 on 27.11.2009 and the same lapsed
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on 26.03.2010; that it was not until 19.03.2013 that the ICT-PEIRA Act was enacted by Parliament; that between 26.03.2010 and 19.03.2013 there was no statute governing the functioning of ICT-PEIRA; that in that regard, there is no saving clause in any of the above referred Ordinances or the ICT-PEIRA Act; and that when Mr. Kayani was appointed as Member (Registration) on 07.07.2010, there was no statute governing the functioning of ICT-PEIRA. The learned counsel for the appellants prayed for the appeal to be allowed in terms of the relief sought therein. 14. The learned Assistant Attorney-General adopted the arguments of the learned counsel for ICT- PEIRA. CONTENTIONS OF LEARNED COUNSEL FOR MR. KAYANI:- 15. On the other hand, learned counsel for respondent No.1 / Mr. Kayani submitted that on 26.03.2023, the Ministry of Education published an advertisement for appointment of Member (Registration) in ICT-PEIRA; that following a competitive process, Mr. Kayani was appointed as Member (Registration) on permanent basis vide appointment letter dated 07.07.2010; that Mr. Kayani was appointed after due process and scrutiny by the Selection Board; that the Cabinet Decision dated 03.12.2021 whereby Mr. Kayani's services were terminated was unlawful; that Mr. Kayani had strong vested rights over his 10 years' tenure as Member (Registration) which could not be destroyed by giving retrospective operation to the 2015 Rules; that the Establishment Division, in its O.M. dated 18.11.2015 and the Law and Justice Division, in its opinion dated 13.07.2021, had clearly stated that the 2015 Rules could not be given retrospective effect and did not apply to his appointment made years before the said Rules were made. He prayed for the appeal to be dismissed. 16. We have heard the contentions of the learned counsel for the parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeals have been set out in sufficient detail in paragraphs 3 to 11 above and need not be recapitulated. 17. ICT-PEIRA was established under the provisions of the ICT-PEIRA Ordinance 2006 which was promulgated on 21.09.2006. Section 6 of the said Ordinance provided that ICT-PEIRA shall consist of a Chairman and two Members possessing qualifications and experience as may be prescribed whereas Section 7 provided that the Chairman and Members shall be appointed by the Government on such terms and conditions as it may determine. The word "prescribed" was defined by Section 2(f) of the said Ordinance to mean prescribed by rules made under the said Ordinance. Section 22 of the said Ordinance provided that subject to the approval of the Government, ICTPEIRA may make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the said Ordinance. 18. In exercise of the powers conferred by Section 22 of the ICT-PEIRA Ordinance, 2006 the Federal Government made the 2006 Rules. Rule 2(i) of the said Rules provided that the said Rules shall apply to all employees in the full-time employment of ICT-PEIRA other than the Chairman and Members. Since the 2006 Rules did not apply to the Chairman and Members, the qualification and experience required for appointing a Chairman and Members of ICT-PEIRA needed to be prescribed in the rules to be made in exercise of powers under Section 22 of said Ordinance. 19. It was not until 18.11.2015 that the Federal Government made the 2015 Rules through Notification (SRO 107(KE)/2015) issued by the Capital Administration and Development Division. The said Rules prescribed the qualification and experience required for appointment to the position of Chairman and Member(s), ICT-PEIRA, the method of appointment, salaries and privileges, etc. Rule 7 of the said Rules provides inter alia for the appointment of Chairman, Member (Academics) and Member (Registration) to be made on tenure basis for an initial period of three years. Rule 1(3) of the said Rules provides that the said Rules shall come into force at once. This implies that the said Rules do not have retrospective effect.
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20. In 2010, the process of the appointment of Member (Registration) on permanent basis was initiated. On 26.03.2010 the Ministry of Education published an advertisement explicitly providing that the appointment of Member (Registration) in ICT-PEIRA is to be made on permanent basis. The Selection Board that scrutinized the credentials of the applicants comprised of (i) Secretary, Ministry of Education, (ii) Director Federal College of Education, (iii) Joint Educational Advisor (P&P Wing), Ministry of Education, and (iv) the Chairman, ICT-PEIRA. The Selection Board had unanimously recommended Mr. Kayani's appointment to the said post to be made on permanent basis. 21. As mentioned above, Section 7 of ICT-PEIRA Ordinance 2006 provided that the Chairman and Members shall be appointed by the Government "on such terms and conditions as it may determine." The terms and conditions of Mr.Kayani's appointment as Member (Registration) were set out in his appointment letter dated 07.07.2010. According to the said letter, the nature of Mr. Kayani's employment was on permanent basis. Although the said letter was signed by the Member (Academics), the Ministry of FE&PT cannot claim to be oblivious of the fact that the entire competitive process culminating in the issuance of the said appointment letter was for the appointment of Member (Registration) ICT-PEIRA to be on permanent basis. The Federal Government has not taken a position that the said appointment letter dated 07.07.2010 had been issued without its knowledge or concurrence. Therefore, we are of the view that the Federal Government had, in terms of Section 7(1) of the ICT-PEIRA Ordinance 2006 (which is in pari materia with section 7(1) of the Islamabad Capital Territory Private Educational Institution (Registration and Regulation) Act, 2013 ("ICT-PEIRA Act, 2013"), determined Mr. Kayani's appointment to be made on permanent basis. 22. As mentioned in paragraph 4 above, Mr. Kayani's appointment was challenged in writ petition No.403/2019 before this Court. Mr. Kayani was respondent No.4 in the said writ petition. This Court, in its order dated 13.01.2020, had directed the Secretary, Establishment Division and the Secretary, Ministry of FE&PT to prepare a summary for the Cabinet for consideration as to whether the appointment of Mr. Kayani could be regulated on the basis of tenure or otherwise. For purposes of clarity, paragraphs 3 to 5 of the said order dated 13.01.2020 are reproduced herein below:- "3. Keeping in view the mandate of the law, this Court deems appropriate that the matter shall be referred to the Federal Government as referred in the PLD 2016 SC 808 titled (Mustafa Impex Vs. Government of Pakistan), who shall determine/decide the case of respondents No.3 & 4 in terms of Section 7 of the PEIRA Ordinance, 2006, whose appointments have been made in the year 2009, i.e. before the promulgation of amended Rules, 2015. 4. Learned Assistant Attorney General as well as learned counsel for respondents No.3 & 4/PEIRA also conceded the above referred view of this Court. 5. In view of above background, the Secretary, Establishment Division and the Secretary, Ministry of Education, Government of Pakistan are directed to prepare a summary and transmit the same to the Cabinet Division, who shall place the same before the Cabinet in its upcoming meeting for consideration as to whether the said positions of respondents No.3 & 4 can be regulated (on the basis of tenure) or otherwise. It is expected that the Federal Government shall decide the matter within two months and submit its report to that effect, on the next date of hearing. 6. Copy of this Order shall be transmitted to the Secretary, Establishment Division and the Secretary, Education, Government of Pakistan." 23. After the Order dated 13.01.2020 was passed by this Court in writ petition No.403/2019, the Ministry of FE&PT, on 01.04.2020, submitted a summary titled "decision on the regularization on the basis of tenure or otherwise of Members PEIRA on directions of Islamabad High Court" to the Cabinet. In paragraph 5 of the said summary, it is mentioned that Mr. Kayani's appointment was made in 2010 on permanent basis by the Ministry of Education in the absence of duly approved
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recruitment rules for the post of Member (Registration), and that such rules were framed later in 2015. In paragraph 6 of the said summary, it is stated that the principle of statutory interpretation requires that law must be interpreted with the view to avoid legal absurdity, and that the rules cannot be interpreted in a manner that allows Mr. Kayani to hold the position on permanent basis and for an indefinite period of time. Furthermore, it is stated that the position of Member (Registration) is a tenure position as the 2006 Rules do not apply to Chairman and Members of ICT-PEIRA. The said Ministry sought a declaration from the Cabinet that Mr. Kayani's appointment can be regulated on the basis of tenure on the principle laid down in Rule 7 of the 2015 Rules. 24. The Cabinet had raised certain queries on the summary pertaining to the appointment of Mr. Kayani's appointment. The answer to these queries required certain clarifications from the Establishment Division after seeking an opinion from the Law and Justice Division. O.M. dated 10.06.2020 from the Cabinet Division also shows that the Ministry of FE&PT had been requested to seek the views / comments of the Law and Justice Division and incorporate the same in the summary for the Cabinet. 25. The order sheet in writ petition No.403/2019 reveals that on 07.09.2020 and 02.10.2020, the Assistant Attorney-General informed this Court that in compliance with the order dated 13.01.2020, the matter had been placed before the Cabinet but due to certain queries raised by the Cabinet, clarification had been sought from the Establishment Division after seeking an opinion from the Law and Justice Division, and that after receiving the opinion from the Law and Justice Division, the matter shall be placed once again before the Cabinet. On 06.11.2020, the Assistant Attorney- General informed this Court that the Law and Justice Division had not given its opinion as yet. 26. At this stage, it may be mentioned that while the 2015 Rules were in the process of finalization, Mr. Kayani had made a representation dated 17.11.2015 to the Secretary, Establishment Division seeking for the said Rules not to be made applicable to the persons already appointed to the posts of Member (Academics) and Member (Registration) in ICT-PEIRA. Vide O.M. dated 18.11.2015, the Establishment Division had expressed its view that "the revised qualification and experience shall have prospective effect and would not in any manner affect the terms and conditions of service of the existing Members (i.e. their regular appointment may not be converted into tenure appointment)." 27. On 13.04.2020, the Establishment Division issued an O.M. in which reference was made to its earlier views expressed vide O.M. dated 18.11.2015. The said O.M. dated 13.04.2020 sets out the said Division's views on the matter regarding appointment to the positions of Member (Registration) in ICT-PEIRA. In the said O.M., it is mentioned that Section 7 of the ICT-PEIRA Ordinance 2006 provides that the Chairman and Members of ICT-PEIRA shall be appointed by the Government on such terms and conditions as it may determine; that under Section 22 of the said Ordinance, rules could be made with the approval of the Government for the purpose of giving effect to the provisions of the said Ordinance; that the 2006 Rules are not applicable to the appointments of Chairman and Members of ICT-PEIRA; that on 18.11.2015, the Establishment Division conveyed its views on the draft Terms and Conditions for the posts of Chairman and Members (Academics and Registration); and that at the time of the appointment of Member (Registration) on permanent basis in 2010, the 2015 Rules had not been framed. In the said O.M., it has been mentioned that the summary had been prepared by mutual consultation between the Ministry of FE&PT and the Establishment Division. 28. The Law and Justice Division sent its opinion to the Ministry of FE&PT through the O.M. dated 13.07.2021. In the said opinion, it has explicitly been mentioned that the Member (Registration) had been appointed on 07.07.2010 on the recommendations of the Selection Board and with the approval of the competent authority on permanent basis. Reference was made to Section 7 of ICT- PEIRA Ordinance, 2006 which provided that the Chairman and Members of ICT-PEIRA shall be appointed by the Government on such terms and conditions as it may determine. The Law and
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Justice Division's view was that the terms and conditions on which Mr. Kayani was appointed were set out in his notification for appointment dated 07.07.2010 which clearly provided that the appointment was on permanent basis. It was also clarified that the 2015 Rules applied only to the Chairman and Members who are to be appointed under the said Rules. The Law and Justice Division concurred with the views of the Establishment Division contained in the O.M. dated 18.11.2015 and opined that the 2015 Rules are to have prospective effect and "would not in any manner affect the terms and conditions of service of the existing members." 29. On 16.11.2021, the Ministry of FE&PT submitted a second summary for the Cabinet. We have gone through the said summary with great interest and keenness -- and at times more amusement than keenness. It projects an impression that the proposal for the need for Mr. Kayani's appointment to be terminated having been made in the absence of rules had been made in implementation of orders passed by this Court in writ petition No.403/2019. The summary is titled "Implementation of orders of the Islamabad High Court in WP 403/2019 appointment of Members in "Private Educational Institutions Regulatory Authority (ICT PEIRA)". In the said summary, the Ministry of FE&PT sought approval of the Cabinet to terminate Mr. Kayani's appointment as Member (Registration). For…
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