Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Zahid Ali VS Respondent: Federation of Pakistan through Secretary, Ministry of Overseas JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Zahid Ali vs Federation of Pakistan through Secretary, Ministry of Overseas
JUDGMENT
Reported As: 2023 IHC 93, PLJ 2023 Islamabad 382, 2023 PLC (C.S.) 1091 Result: Petition Dismissed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Zahid Ali, who is serving as Deputy Director (BS-18) in the Workers Welfare Fund ("W.W.F."), has prayed for the issuance of a writ of quo warranto to quash the appointments of respondents No.3 to 6 in W.W.F. 2. W.W.F. was established on 09.12.1971 pursuant to the provisions of the Workers Welfare Fund Ordinance, 1971 ("the 1971 Ordinance") for providing residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto. Section 8(3) of the 1971 Ordinance provides that the Governing Body of W.W.F. shall determine the terms and conditions of service of the Secretary and the employees of W.W.F. with the previous approval of the Federal Government. The Governing Body with the approval of the Federal Government made the Workers' Welfare Fund (Employees Service) Rules, 1997 ("the 1997 Rules"). These Rules are set- out in notification (SRO 1193(I)/97), dated 15.11.1997. Section 8(4) of the 1971 Ordinance provides that the Secretary and every employee of W.W.F. shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860. 3. Learned counsel for the petitioner submitted that the appointments of respondents No.3 to 6 have been made in violation of the 1997 Rules; that respondents No.3 and 4 were not appointed by adopting the procedure prescribed in the 1997 Rules for making initial appointments; that neither was any advertisement published nor was any test or interview conducted before the appointment of respondents No.3 and 4; that the posts against which respondents No.5 and 6 were appointed had not been created with the approval of the Governing Body of W.W.F.; that respondents No.5 and 6 were also appointed without any advertisement; and that the unlawful appointments of
---
## Page 2
respondents No.3 to 6 have had an adverse impact on the petitioner's promotion prospects which amounts to a violation of his fundamental rights guaranteed by the Constitution. 4. I deem it appropriate to deal with the challenge to the appointment of each respondent separately. Respondent No.3 (Sumaira Kausar) 5. The petitioner asserts that respondent No.3 was appointed on 15.10.2008 as Assistant Director (BS-17) on ad-hoc basis and on 01.09.2009, her services were regularized with effect from 01.09.2009 without adopting the procedure prescribed in the 1997 Rules for making the initial appointment. The petitioner also asserts that no advertisement was published before respondent No.3's appointment and that she was appointed without being subjected to a written test or interview. 6. The record shows that vide office order dated 15.10.2008, respondent No.3 was appointed as Assistant Director (BS-17) on ad-hoc basis for a period of six months extendable on the basis of her performance. Vide office order dated 15.04.2009, her ad-hoc service period was extended up to 14.10.2009. Office order dated 28.08.2009 issued by W.W.F. shows that respondent No.3's services were regularized with effect from 01.09.2009. The said office order also shows that respondent No.3 was to be treated as a "temporary employee" and was to be on probation for one year. Unless the probation period was terminated earlier, it was deemed to have been extended for another year and on the lapse of such extended period, she was deemed to have successfully completed her probation period. Vide office order dated 22.12.2010, respondent No.3's probation period was terminated. With the termination of her probation period, her services as Assistant Director (BS-17) were confirmed. On 16.01.2014, the petitioner was promoted to the post of Deputy Director (BS-18). 7. In the year 2007, respondent No.3 was awarded a degree of Bachelor of Business Administration (Honors) and in the year 2008, she was awarded a degree of Master of Business Administration by the Arid Agriculture University, Rawalpindi. On 10.05.2017 (i.e., after her appointment in W.W.F.), respondent No.3 was awarded a degree of Master of Science in Finance by Bahria University. 8. It is not disputed that several employees appointed on contract basis in W.W.F. were regularized pursuant to decisions taken by the competent authority in W.W.F. Several office orders issued by W.W.F. whereby the contractual / ad-hoc services of employees were regularized have been brought on record. In the case of Imran Ahmed Vs. Federation of Pakistan (2019 PLC (C.S.) Note 19), this Court has held in paragraph 123(ix) of the said report that employees who were already working in different Ministries, Divisions, etc. whose services had been regularized should not be disturbed as their cases fall within the ambit of past and closed transactions subject to the condition that they were appointed in accordance with the law and in a transparent manner. In this view of the matter, I am not inclined to interfere with respondent No.3's appointment as Assistant Director (BS-17) made more than a decade ago. Respondent No.4 (Ejaz Ahmed) 9. The petitioner asserts that respondent No.4 was appointed as Assistant Director (BS-17) in W.W.F. on 31.10.2012 when there was no post available against which respondent No.4 could be appointed. It is also asserted that neither was any advertisement published inviting applications for appointment to the said post nor was any written test or interview conducted before respondent No.4's appointment. 10. The record shows that on 21.09.2012, W.W.F. published an advertisement inviting applications for appointment to different posts in W.W.F., including the post of Assistant Director (BS-17). In the said advertisement, the required age limit for the applicants was stated to be between 18 to 30 years, and that the upper age limit could be relaxed as per the Federal Government rules. On 27.09.2012, respondent No.4 applied for appointment to the said post and submitted his bio-data along with his educational testimonials for consideration by W.W.F. Respondent No.4 has done his Master in
---
## Page 3
Business Administration from the University of Punjab. Vide letter dated 19.10.2012, W.W.F. required respondent No.4 to appear for interview on 24.10.2012 before the Selection Committee. On 25.10.2012, W.W.F. offered appointment as Assistant Director (BS-17) to respondent No.4. This offer was accepted by respondent No.4 who joined his duties in W.W.F.'s Secretariat on 31.10.2012. Vide office order dated 14.05.2014, respondent No.4's probation period was terminated and his services as Assistant Director (BS-17) in W.W.F. were confirmed. 11. Respondent No. 4 was 34 years of age when he was appointed as Assistant Director (BS-17). He claimed age relaxation of five years in the upper age limit of 30 years as mentioned in the advertisement dated 21.09.2012. 12. Rule 13(5) of the 1997 Rules provides that a candidate for initial appointment must possess the required educational qualifications and experience and must be within the age limit laid down for the post in Part-II of Appendix-2 to the said Rules. Part-II of Appendix-2 of the 1997 Rules prescribes an age limit of 22 to 30 years for appointment as Assistant Director (BS-17) in W.W.F. The proviso to Rule 13(5) provides that the maximum age limit may be relaxed up to five years by the appointing authority if no suitable candidate within the prescribed age limit is available. It is also not disputed that the advertisement dated 21.09.2012 clearly provided that the upper age limit could be relaxed as per Federal Government rules. The Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 ("the 1993 Rules"), which have been made pursuant to Rule 12 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provides for age relaxation admissible to different categories of candidates. Rule 4A (1) of the 1993 Rules entitles a candidate for appointment to a post in BS-17 to an age relaxation by a period of five years in the maximum age limit prescribed for initial appointment under any rules for the time being in force. By virtue of Rule 4A(1) of the 1993 Rules, respondent No.4 was entitled to age relaxation by five years in the maximum age limit of 30 years prescribed for appointment to the post of Assistant Director (BS-17) in Part-II of Appendix-2 to the 1997 Rules. Since respondent No.4 was 34 years of age when he was appointed as Assistant Director (BS-17) in WWF, I do not find his appointment to be in violation of the 1997 Rules. 13. Rule 13(2) of the 1997 Rules provides that initial appointment to a post in pay scale-18 and below shall be made by the appointing authority on the recommendations of the Selection Committee concerned. The documents on the record show that respondent No.4 was duly interviewed by the Selection Committee on 24.10.2012 after which he was offered appointment as Assistant Director (BS-17). The minutes of the meeting of the five-member Selection Committee that interviewed the 19 shortlisted candidates, including respondent No.4, for the post of Assistant Director (BS-17) show that respondent No.4 had unanimously been recommended for appointment to the said post as he was at the top of the merit list. The marks sheet brought on record through an application (C.M.No.2298/2022) shows that respondent No.4 had obtained the highest marks among the competing candidates. It is not disputed that the Secretary, W.W.F. is competent to make appointment to posts in BS-18 and below. The note file on the record shows that respondent No.4's appointment was with the approval of the Secretary, W.W.F. 14. The organogram of W.W.F. shows that there were twenty two sanctioned posts of Assistant Director (Human Resource / Accounts) (BS-17) and thirteen posts of Assistant Director (Technical) (BS-17) in W.W.F. Eleven posts of Assistant Director (Human Resource / Accounts) (BS-17) were direct recruitment posts whereas eleven were promotion posts. Twelve posts of Assistant Director (Technical) (BS-17) were direct recruitment posts and one was a promotion post. Respondent No.4 had been appointed against one of the vacant posts of Assistant Director (BS-17) on 13.03.2012 and after him, Muhammad Zubair Malik had been appointed as Assistant Director (BS-17) on 13.03.2023. These appointments did not exceed the sanctioned strength for the post of Assistant Director (BS- 17).
---
## Page 4
Respondent No.5 (Faiza Shabir Cheema) 15. Learned counsel for the petitioner submitted that respondent No.5 was appointed as Deputy Director (Information Technology ("I.T")) on 15.03.2012 and that before her appointment, W.W.F. did not publish an advertisement inviting applications for appointment to the said post; that respondent No.5 did not participate in any written test and did not have the requisite qualifications for appointment to the said post; that the Governing Body of W.W.F. had prescribed the qualifications required for appointment to the said post and these qualifications were mentioned in the advertisement dated 04.11.2011; that these qualifications were revised without the approval of the Governing Body just to accommodate respondent No.5; that respondent No.5's educational qualification was BCS (Honors) whereas the qualification prescribed by the Governing Body for the said post was Masters in I.T; that undue favour was extended to respondent No.5 because her husband was serving as Section Officer in the Ministry of Overseas Pakistanis and Human Resource Development and was dealing with the affairs of W.W.F.; that the matter regarding respondent No.5's illegal appointment was the subject matter of an inquiry; and that the Inquiry Committee has issued a show cause notice to respondent No.5 on 27.05.2016 and the proceedings are still pending. 16. The record shows that on 18.02.2012 and 22.02.2012, W.W.F. published advertisements in Urdu and English newspapers, respectively inviting applications for appointment to inter alia the post of Deputy Director (I.T) (BS-18). As per the said advertisements, applicants were required to possess at least Second Class Masters Degree in I.T / Computer Science or a four-year Bachelor's Degree in I.T / Computer Science or equivalent qualification from any recognized university/institution. Respondent No.5 was one of the applicants for the said post. At the time when respondent No.5 submitted her application, she was serving as Database Officer (BS-17) in the National Awareness Campaign on Energy Efficiency and Environmental Protection in the Ministry of Water and Power. Vide letter dated 08.03.2012, respondent No.5 was called by W.W.F. to appear for interview on 13.03.2012 before the Selection Committee. The evaluation proforma for the post of Deputy Director (I.T) (BS-18) shows that the Selection Committee had awarded respondent No.5 the highest marks among the eight shortlisted candidates. Vide memorandum dated 14.03.2012, respondent No.5 was offered appointment on regular basis against the temporary post of Deputy Director (I.T) (BS-18) in W.W.F. on the terms and conditions mentioned therein. After having accepted the said offer, she was appointed to the said post with effect from 15.03.2012. On 02.10.2012, respondent No.5's probation period was terminated and her appointment against the said post in W.W.F. was confirmed. 17. The petitioner has challenged respondent No.5's appointment on the ground that she did not possess the required educational qualifications for appointment as Deputy Director (I.T) (BS-18). It is not disputed that respondent No.5 has obtained a degree of Bachelor of Computer Science from Bahauddin Zakariya University, Multan. This degree was recognized as equivalent to M.Sc (Computer Science) by the Higher Education Commission vide letter dated 28.09.2005. Therefore, it is safe to hold that respondent No.5 had the requisite educational qualification set out in the advertisements dated 18.02.2012 and 22.02.2012 for appointment as Deputy Director (I.T) (BS-18). 18. The minutes of the 113th meeting of the Governing Body of W.W.F. held on 13.10.2011 show that the post of Deputy Director (I.T) (BS-18) was one of the posts created on regular basis at W.W.F.'s Secretariat. It is not disputed that the eligibility criteria for appointment to the post of Deputy Director (I.T) (BS-18) as mentioned in the advertisement is identical to the one for the post of Computer Programmer (BS-18) prescribed in the 1997 Rules. The petitioner's contention that the eligibility criteria for appointment to the post of Deputy Director (I.T) (BS-18) had been set out in the advertisement dated 04.11.2011 and that the said criteria were revised in the subsequent advertisements dated 18.02.2012 and 22.02.2012 is not borne out from the record. The petitioner has
---
## Page 5
not even bothered to file a copy of the advertisement dated 04.11.2011, if at all any such advertisement exists. 19. When the Governing Body of W.W.F. in its 113th meeting created the post of Deputy Director (I.T) (BS-18), there was no I.T cadre in W.W.F. In order to create I.T cadre posts, the 1997 Rules needed to be amended. W.W.F. sent the amended draft rules to the Ministry of Overseas Pakistanis and Human Resource Development so that approval of the Federal Government could be sought in terms of Section 8(3) of the 1971 Ordinance. The Establishment Division, vide office memorandum dated 27.07.2017, conveyed its concurrence to the proposed amendments in the 1997 Rules. Thereafter the Governing Body of W.W.F., in its 138th meeting held on 13.09.2017, approved the amendments in the 1997 Rules which resulted in the inclusion of I.T cadre posts in W.W.F.'s Secretariat. 20. It is not unusual that relatives of employees in an organization are candidates for appointment to posts in such organization. Merely because a candidate happened to be a relative of an employee in an organization, his/her selection cannot be said to be the result of influence or favoritism on account of such relationship alone. A person may be exceptionally bright and meritorious, and the relationship cannot be used as an instrument to his/her disadvantage. However, what needs to be examined is whether he/she has been able to exploit the relationship and earned merit because of such relationship in any selection. There is nothing on the record to suggest any such exploitation in respondent No.5's appointment as Deputy Director (I.T) in W.W.F. 21. Apparently, on 27.05.2016, W.W.F. had issued a show cause notice to respondent No.5, who submitted her reply on 03.06.2016. Vide W.W.F.'s office order dated 06.06.2016, respondent No.5 was exonerated from the charges levelled against her. 22. Since the documents on the record show that the post of Deputy Director (I.T) (BS-18) had been duly created by the Governing Body of W.W.F., and since respondent No.5 had a degree of Bachelor of Computer Science which is recognized as equivalent to M.Sc (Computer Science) by the Higher Education Commission before she participated in a competitive process (i.e., interview conducted after an advertisement), her appointment to the said post cannot be held to be in violation of the law. Respondent No.6 (Faisal Tariq) 23. Learned counsel for the petitioner submitted that respondent No.6 was appointed as Deputy Director (Legal) on 21.04.2011; that the advertisement inviting applications for appointment to the said post was unlawful as the creation of this post had not been approved by the Governing Body of W.W.F.; that even otherwise this post was unlawfully created just to accommodate respondent No.6; that respondent No.6 did not have the relevant experience and did not satisfy the age criteria for appointment to the said post; and that no written test was conducted before the appointment of respondent No.6. 24. The petitioner has tried to impeach respondent No.6's appointment on the ground that the post of Deputy Director (Legal) (BS-18) had not been created by the Governing Body of W.W.F. Respondent No.6 has brought on record a working paper proposing to the Governing Body of W.W.F. that a Legal Section be created in W.W.F.'s Secretariat, Islamabad so that in-house legal experts are available to W.W.F. and private lawyers are not engaged for obtaining legal opinions. It was also proposed that one post of Deputy Director (BS-18) and one post of Assistant Director (BS- 17) be created in the Legal Section. The Governing Body, in its 109th meeting held on 07.02.2011, approved the creation of one post of Deputy Director (Legal) (BS-18) in W.W.F.'s Secretariat at Islamabad. 25. The petitioner had also asserted that no competitive process took place before respondent No.6's appointment as Deputy Director (Legal) (BS-18). It was not disputed that on 03.03.2011, W.W.F.
---
## Page 6
had published an advertisement inviting applications for appointment to the post of Deputy Director (Legal) (BS-18). As per the said advertisement, the age limit for the applicants was 25 to 40 years. The said advertisement made it clear that age relaxation could be granted to different categories of applicants. Furthermore, applicants were required to possess at least a second-class law undergraduate degree and have eight years of experience in a well-known organization or firm. 26. Respondent No.6's matriculation certificate shows that his date of birth is 01.04.1975. This would make him 35 years and 11 months old when the advertisement dated 03.03.2011 was published. Since the advertisement dated 03.03.2011 had provided for the maximum age limit of 40 years for applicants for the post of Deputy Director (Legal) (BS-18), the petitioner's contention that respondent No.6 was over-age when he applied for the said post is just a bare allegation not supported by any document on the record. 27. The petitioner had also objected that respondent No.6 did not have the requisite eight-year experience when he applied for the appointment to the said post. Respondent No.6 was awarded an LL.B degree by Bahauddin Zakariya University in 2002. He was enrolled as an Advocate of the lower Courts on 13.07.2002 and that of the High Court on 16.08.2005. By 2010, respondent No.6 had the requisite eight-year experience as an Advocate. Respondent No.6 has also brought documents on the record to show that he was an active legal practitioner. 28. As regards the petitioner's contention that respondent No.6 had not been required to take a written test before his appointment as Deputy Director (Legal) (BS-18), letter dated 31.03.2011 from the W.W.F. shows that respondent No.6 was informed that the written test for the post of Deputy Director (Legal) (BS-18) was scheduled for 14.04.2011. After respondent No.6 passed the written test, W.W.F., vide letter dated 15.04.2011, called upon him to appear in an interview scheduled for 20.04.2011. After respondent No.6 emerged as the successful candidate, W.W.F., vide letter dated 21.04.2011, offered him appointment as Deputy Director (Legal) (BS 18) on the terms and conditions mentioned in the said letter. Respondent No.6 accepted the said offer and vide W.W.F.'s letter dated 07.02.2013, his probation period was terminated and his appointment to the said post was confirmed with effect from 02.05.2011. 29. Since the documents on the record show that the post of Deputy Director (Legal) (BS-18) had been duly created by the Governing Body of W.W.F. and since respondent No.6 was an active legal practitioner with the requisite eight-year experience before he participated in a competitive process (i.e., written test and interview conducted after an advertisement), his appointment to the said post cannot be held to be in violation of the law. Whether the filing of this petition is motivated by the petitioner's grudge and animosity against the private respondents:- 30. Learned counsel for respondents No.3 to 6 were in unison on their submission that the petitioner was actuated by ill will and venom against the said respondents to file the instant writ petition. They drew the attention of the Court to memorandum dated 29.08.2016, issued by W.W.F. to the petitioner, accusing him of having availed unauthorized leave without the approval of the competent authority. He was also accused of being habitual in absenting himself from duty and leaving his workplace without prior approval of the competent authority. The petitioner's behaviour, according to W.W.F., amounted to misconduct warranting strict disciplinary action under the 1997 Rules. The petitioner was directed to explain as to why disciplinary action should not be taken against him. The said memorandum dated 29.08.2016 was signed by respondent No.3. 31. Vide letter dated 23.09.2016, W.W.F. turned down the petitioner's application dated 20.09.2016 for the grant of leave with full pay for the period between 26.09.2016 to 30.11.2016. The said letter dated 23.09.2016 was also signed by respondent No.3.
---
## Page 7
32. Vide letter dated 06.01.2017, W.W.F. turned down the petitioner's application for leave with full pay for a period of 42 days commencing from 20.12.2016 to 31.01.2017. Vide the said letter, the petitioner was called upon to immediately report for duty. He was also advised to desist from leaving his workplace without prior approval. The said letter dated 06.01.2017 was also signed by respondent No.3. The petitioner addressed letter dated 10.01.2017 to respondent No.3 referring to her as "nave" and alleging that the petitioner and his family's life and liberty was under threat from respondent No.3, etc. Additionally, in the said letter, the petitioner took the position that respondent No.3's appointment in W.W.F. was illegal. 33. Respondent No.4 was Assistant Director (Administration) in W.W.F. when the show cause notice dated 01.12.2016 was issued to the petitioner. 34. Respondent No.5, in her written comments, has taken the position that while her husband was posted as Deputy Director (Administration) in W.W.F. on deputation basis, he had not succumbed to the pressure exerted by the petitioner to actualize his promotion as Deputy Director (BS-18). At that time, there was no vacant post of Deputy Director (BS-18) in the promotion quota. Respondent No.5 also asserts that the said promotion was withdrawn on 29.06.2016 and the petitioner had been issued an administrative warning on the directions of the Secretary, Ministry of Overseas Pakistanis and Human Resource Development. 35. The petitioner was directly recruited as Executive Officer (BS-16) on 11.05.2002 and promoted as Assistant Director (BS-17) on 01.12.2010. Along with the writ petition, the petitioner has annexed the seniority list of Assistant Directors (BS-17)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.