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Official Citation: 2025 IHC 231520
Court / Jurisdiction: Islamabad High Court
Parties: Usama Khilji vs FOP etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 231520. In this matter between Usama Khilji and FOP etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 20-AUG-2025 CASE NO: Writ Petition-1561-2023 CITATION: 2025 IHC 231520 PARTIES: Usama Khilji VS FOP etc. LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: Petitioner seeks to set aside the impugned advertisement and all subsequent steps taken to fill the position of Member (Administration), and declare the creation of post of Member (Administration) is in contravention of the Pakistan Telecommunication (Reorganization) Act 1996. ============================================================ JUDGEMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
WRIT PETITION No. 1561 OF 2023
Usama Khilji vs. Federation of Pakistan and others
PETITIONER BY: Mr. Asad Ladha, Advocate
RESPONDENTS BY: Mr. Munawar Iqbal Dug gal, Mr. Rashid Hafeez , Additional Attorney Generals and Mr. Fahad Khan Tareen, Assistant Attorney General. Mr. Salman Mansoor Siddiqui and Mr. Swim Raja, Advocates for Respondent No.3. Barrister Qasim Wadud and Mr. Wasi Ullah Khan, Advocate s for Respondent No.4 Mr. Asif Mehmood, Section Officer, Cabinet Division Islamabad
DATES OF HEARING: 24.05.2023, 05.03.2024, 17.12.2024, 28.01.2025 and 20.08.2025. ======================================= BABAR SATTAR, J. - The petitioner has impugned an advertisement dated 29.03.2023 (“Impugned Advertisement”) announcing a vacancy for the office of Member (Administration) in Pakistan Telecommunication Authority (“PTA”) and inviting applications from candidates who satisfied the qualification, experience and a ge criteria mentioned in the Impugned Advertisement. The petitioner further sought a declaration that the post of Member (Administration) was in contravention of provisions of Pakistan Telecommunication Re - Organization Act , 1996 (“Telecom Act”) and Pakistan Telecommunication Authority‟s Chairman and Member (Appointment and Qualifications) Rules, 2013 (“PTA W.P No. 1561 of 2023 Page | 2
Appointment Rules”) and sought that the Federal Government be restrained from filling the position of Member (Administration) PTA on the basis of the Impugned Advertisement. 2. This C ourt admitted the petition for hearing on 11.05.2023 and directed the Federal Government not to proceed further with the process of recrui tment pursuant to the Impugned Advertisement till the next date of hearing. T he Federal Government then filed an application seeking vacation of the injunctive order dated 11 .05.2023. After hearing such application, this Court by order dated 24 .05.2023 held the following: ―The injunctive order dated 11.05.2023 is recalled to the extent that the Cabinet Division may proceed with the process of soliciting or processing applications pursuant to the advertisement that has been impugned in this petition. But any appointment made pursuant to such process will be subject to the outcome of this peti tion and the determination of whether there exists rational basis for the Federal Government to prescribe disparate eligibility criteria for the posts of Member PTA.‖ 3. The hearing of the matter continue d over several sessions. During the hearing conducte d on 05.03.2024, the Court framed the following qu estions to be addressed by the Federal Government: 1. Whether the approval for summary by the Cabinet in itself qualifies as amendment to the PTA Appointment Rules, which are to be prescribed pursuant to powe rs delegated by the legislature under a statute? And what is the relevant date, as a matter of law, which is regarded as the date of which rules as amended entered into force? 2. Whether the Rules prescribed pursuant to a summary approved by the Federal Cabi net can regularize any W.P No. 1561 of 2023 Page | 3
recruitment process that has been undertaken pursuant to the summary but prior to the amendment in the PTA Appointment Rules, where the Act specifically provides that increase in the number of members can be ordered by the Federal Government, by prescribing rules for such purpose? 3. Whether a recruitment process, which was initiated/undertaken at the time when the PTA Appointment Rules did not provide for the post for which such process had been undertaken, can be subsequently legalized by creating such post and would such process fall foul of the principles of transparency and legality that must be abided by while undertaking recruitment for a public post? 4. The Court was also informed that during the pendency of the petition, Major General (R) Hafeez Ur Rehman was appointed as Member (Administration) and subsequently as Chairman PTA. While the Court in its order dated 24.05.2023, had already noted that any appointment made pursuant to the Impugned Advertisement would remain subject to the outcome of the petition, it exercise d its authority in terms of Order I Rule 10 of the Code of Civil Procedure, 1908 (“CPC”) to implead Major General (R) Hafeez Ur Rehman, Chairman and Member (Administration) PTA, as respondent No.4, being a necessary party to afford him the right to defend his appointment pursuant to the Impugned Advertisement. Arguments of the Parties 5. The learned c ounsel for the petit ioner stated that pursuant to Section 3 of the Telecom Act, three posts for members stood created within PTA. And the proviso to Section 3(2) of the Telecom Act stated that further posts could be created by t he Federal Government. He stated that the Cabinet had not created any additional post and the announcement of the induction of a new member was also in breach of the PTA W.P No. 1561 of 2023 Page | 4
Appointment Rules, which did not envisage the position of Member (Administration). He submitted that the announcement was therefore ultra vires the provisions of the Telecom Act and the PTA Appointment Rules. The learned counsel for the petitioner stated that the advertisement for the appointment of Member (Administration) PTA was issued on 28.03.2023. At the said time the PTA Appointment Rules did not provide for the post of Me mber (Administration). He stated that subsequently t he PTA Appointment Rules were amended and notified in the gazette on 04.05.2023. However, under the Impugned Advertisement, the closing date for submission of applications was a period of fifteen days. Thus, at the time when the advertisement was published and within the window for filing of applications, no post for Member (Administration) existed in the PTA Appointment Rules. He stated that in the reply filed by the Federal Government , it had appended summaries initiated by various divisions of the Federal Government . The summary initiated by the Cabinet Division highlighted that under Section 3(2) of the Telecom Act, the Federal Government can increase the number of members of PTA by prescribing Rules. He stated that the su mmary also highlighted the fact that the power of administration was vested in the Chairman of the Authority under Section 3(8) of the Telecom Act, and the creation of the post of Member (Administration) would therefore create a conflict re the exercise of administrative powers of the Authority and would need clarification. He stated that the summary also recognized that by increasing the number of members to an even number (i.e. 4), there would arise a conflict with regard to decisions taken by PTA, as decisions had to be rendered by W.P No. 1561 of 2023 Page | 5
majority vote and with an even number of members comprising PTA, decisions could not be made in case the votes were tied. He stated that despite the mention of these issues, no amendments had been made in the Telecom Act. He stated that while amendments were made in the PTA Appointment Rules, they were made after the Impugned A dvertisement was issued. He further stated that the maximum age for application for a post of Member PTA was 57 year s. But as per the Impugned Advertisement the maximum age permitted for application for the post of Member (Administration) was 61 year s, which reflected that the post was being created to accommodate a predetermined candidate to be appointed to such post. After the matter was brought before this Court, a further amendment in the PTA Appointment Rules was made on 24.05.2023 , whereby the minimum age for the remaining Members of PTA ha d also been enhanced from 57 years to 61 years. He further stated that the position of Member (Technical) was advertised in January 2023. However, without filling such position, the post of Member (Administration) was created in breach of the PTA Appointment Rules and was then filled during the pendency of the instant case, and the newly appointed Member (Administration) was then also appointed as Chairman PTA. The learned c ounsel for the petitioner stated that in Barrister Sardar Muhammad Ali vs. Federation of Pakistan and others (2013 PLC (C.S.) 625) the Lahore High Court had held that the a ppointment of a member of PTA was a matter separate from t he appointment of any one of the members as Chairman. And a transparent process had to be followed while appointing Chairman from amongs t the members as well. He stated that respondent No.4 was appointed W.P No. 1561 of 2023 Page | 6
as Member during the pendency of the petition and on the very same day he was also appointed Chairman . There was no process followed while appointing him as Chairman PTA and on such ground too, the appointment of respondent No.4 as Chairman PTA was liable to be set-side. 6. The contention of the learned cou nsel for the p etitioner remained that the creation of the post of Member (Administration) was in conflict with the requirements of Section 3(8) and 3( 9) of the Telecom Act, and that the Impugned Advertisement was issued and recruitment pursuant to it, was undertaken prior to the enactment of amendments in the PTA Appointment R ules, as the amendments were notified on 04.05.2023, by which date the Selection Committee had already interviewed the shortlisted candidates and made its recommendations to the Federa l Government . And that t he creation of the post of Member (Administration) and it being filled with undue haste suffered from m ala fide in law ; at the time that such post was created , the existing post of Member (Technical) was vacant , which remained vacan t while this new post was created and respondent No.4 was appointed to it. The argument of mala fid e in law was rooted in the fac t pattern emphasized by the learned counse l for the p etitioner, who argued that the creation of the post and the criteria presc ribed for appointment of respond ent No.4 to the post of Member (Administration) and subsequently Chairman PTA was driven by the object of appointing a pre-identified individual and the timing of the recruitment as well as the criteria for the post were tailored to accommodate such individual , as was subsequently borne out by the appointment of the respond ent No.4. He W.P No. 1561 of 2023 Page | 7
submitted that the credentials of respond ent No.4 themselves established that the criteria , as modified for the post of Member (Administration) in comparison to the criteria prescribed for the posts of other members in the PTA Appointment R ules, was driven by the object of appointing the incumbent to the post of Member (Administration) and then Chairman PTA , as he did not meet the pre-existing criteria for members prescribed in PTA Appointment Rules being over age and not possessing a Master's degree in the relevant field. 7. Learned Additional Attorney General raised objections with regard to the maintainability of the petition . He submitted that the petitioner was not an ag grieved person for purposes of Article 199 (1)(a) of the C onstitution and could not seek the issuance of a writ of mandamus , prohibition or quo warranto. He submitted that the petition was filed on the basis that the creation of the post of Member (Administration) in the PTA had not been approved by the Federal Government in terms of Section 3(2) of the Telecom Act. And further , that the PTA Appointment Rules had not been amended to provide for the post of Me mber (Administration ). He stated that both of these contentions were factually incorrect. The Cabinet Division initiated a summary for the creation of the post of Member (Administration) on 17.03.2023 , and the decision in that regard was taken on 21.03.2023 , and the post of M ember (Administration) was created with the approval of the Feder al Government. He further stated that a summary for amendment to the PTA Appointment Rules was initiated on 24.03.2023 , and rule 4(1) of the PTA Appointment Rules was amended to provide for t he qualifications and experience required for the office of W.P No. 1561 of 2023 Page | 8
Member (Administration). He stated that such summary seeking consequential amendment in the PTA Appointment Rules was also approved on 25.0 3.2023. He stated that the Rules were subsequently notified in the gazette on 04.05.2023, which then provided for the post of Member (Administration), and the maximum age for applicants eligible for such post was 61 years. The learned Additional Attorney General further submitted that pursuant to Section 3(3) of the Telecom Act, the only qualification prescribed for the Chairman was that he was to be appointed from amongst the members. As the current Chairman PTA was appointed as Member (Administration) a day before a summary for his appointment as Chairman was a pproved, he met the qualification and could be appointed by the Prime Minister to the post of Chairman PTA. He stated that the Prime Minister, initially in his capacity as the member -in-charge of the Cabinet Division , approved the name of Major General (R ) Hafeez Ur Rehman as the most suitable candidate to be Member (Administration), and subsequently approved his name as Chairman PTA in his capacity as the Prime Minister. The learned Additional Attorney General further submitted that the Court could not take into account events subsequent to the filing of the petition as that would be tantamount to taking suo motu cognizance of matters not raised in the writ petition . And the exercise of such jurisdiction was now expressly ba rred in view of section 199(1A) of the C onstitution introduced by virtue of the 26th Constitutional A mendment. He submitted that while the Impugned A dvertisement was pu blished at a time when the amendment to the PTA Appointment R ules for purposes of creation of the post of Member (Administration) PTA had n ot W.P No. 1561 of 2023 Page | 9
been notified, approval for such ame ndment had been granted by the Federal G overnment along with the approval for the Impugned A dvertisement. Consequently, there was substantial compliance with th e requirements of law when the Impugned Advertisement was published and the recruitment process to fill the post of M ember (Administration) was commenced after seeking approval from the Prime Minister and the Cabinet , which post was eventually filled by the appointment of respond ent No.4. 8. The learned Additional Attorney General took some time to seek instructions as to the process followed by the Feder al Government while appointing r espondent No.4, who was initially appointed as Member (Administration) PTA, as Chairman PTA. And after seeking instructions, he informed the Court that there was no record of any formal process available with the Federal Government and that no such process was needed as it was within the discretion of the Prime Minister to select any one of the members o f PTA to se rve as Chairman PTA . And in appointing the newly appointed Member (Administration) as Chairman PTA, no illegality was committed. 9. Learned counsel for PTA reiterated the arguments made by the learned Additional Attorney General on behalf of the Federal Government. He relied on the reply filed by PTA as well as the various noti fications issued , to argue that r espondent No.4 was appointed as Member (Administration) and then Chairman PTA, in compliance with the requirements of the Telecom Act. W.P No. 1561 of 2023 Page | 10
10. Learned counsel representing respondent No.4 submitted that there was no il legality in the appointment of r espondent No.4 as Member (Administration) and Chairman PTA . Respondent No. 4 applied for the post of Member (Administration) pursuant to the Impugned Advertisem ent. He was shortlisted for satisfying the eligibi lity criteria mentioned in the Impugned A dvertisement and prescribed in the PTA Appointment R ules, as amended . He was subsequently interviewed by a selection committee appointed pursuant to Schedule II of t he PTA Appointment R ules, and was among the panel of individuals recommended by the Selection Committee to the Federal Government. The Federal Government then selected him for appointment to the post of Member (Administration) and subsequently to the post of Chairman PTA. Learned counsel for respondent No. 4, however, vociferously objected to the maintainability of the petition. H e submitted that the petitioner was not an aggrieved per son for purposes of Article 199(1) of the Constitution. The writ was not a writ of quo warranto, as the prayer sought a declaration that the Impugned Advertisement be declared ultra vires the Telecom Act and the PTA Appointment Rules. T he petitioner had not challenged the appointment of respondent No.4 as Member (Administration) or Chairman PTA, which a ppointments were made after the filing of the petit ion. Being a subsequent event not directly challeng ed by the petitioner through an amendment of the petition or through the filing of a fresh petition, such subsequent ev ent c ould not be taken cognizance of by the court in its constitutional jurisdiction, in view of Article 199(1A) of the Constitution. H e submitted that doing so would be akin to exercising suo motu jurisdiction and W.P No. 1561 of 2023 Page | 11
would fall foul of the principle of separation of p owers and the principle that the court must not overr each its constitutional mandate. In support of such proposition he relied on various judgments of the Supreme Court holding that the High Court was not vested with suo motu jurisdiction and that in gr anting relief the C ourt ought to restrict itself to the prayer sought by the petitioner. 11. On 20-08-2025 the matter was reserved for judgment and all parties were invited to file written submissions by 08-09- 2025, if they so wished. Written submissions were then filed on behalf of the petitioner and respondent No.4, which form part of the record. Maintainability of the Petition 12. There are at least three subsets t o the maintainability challenge brought forth in the instant petition. The first relates to the petitioner not being an aggrieved person , for purposes of Article 199(1) (a) of the Con stitution. A c onnected challenge is that the petitioner has not directly challenged the appointment of r espondent No.4, which being an event subsequen t to the filing of the petition ought not to be looked at by this Court for purposes of the adjudication of the case brought before the Court. And the third aspect of the maintainability challenge is that any relief granted t hat affects the appointment of respondent No. 4 would be tantamount to the exercise of suo motu jurisdiction barred by Article 199(1A) of the Constitution. 13. The first question to be addressed is whether or not the petitioner is a n aggrieved person for purposes of Article 199(1)(a) of the C onstitution, and whether or not he has any W.P No. 1561 of 2023 Page | 12
other adequate remedy. It is only if the petitioner meets the two-fold conditions that the court can assume jurisdiction to delve into the matter. This Court will then consider the scope of Article 199(1A) of the Constitu tion and whether such a clarificatory amendment brings any change to the scope of jurisdiction of the High Court under Article 199 of the Constitution, as was settled prior to the promulgation of the 26th Constitutional Amendment. This question needs to be considered in juxtaposition with the scope of the authority of the High Court to mold relief in view of the case presented and argued before the Court and to grant ancillary relief where the justice of the case so demands, provided that granting such reli ef causes no prejudice to any party. 14. In order to qualify as an aggrieved person, the petitioner must have a personal right tha t he seeks to enforce, and the Federal G overnment must be burdened with the corresponding duty that it is obliged to discharg e under the C onstitution and the law. This Court will consider the credentials of the petitioner together with the right he claims. The second and the corresponding part of this inquiry is to look at the duty imposed by law on the Federal Government v is-a-vis the composition of PTA and how the public office of a member of PTA is to be filled. 15. The petitioner's case , in a nutshell, is that as a user of telecommunication services that are regulated by PTA, he has a right to be provided telecommunication s ervices regulated by a statutory body that is constituted in accordance with law. And in the event that members comprising PTA are not a ppointed in accordance with law, his right guaranteed by Article 25(1) of the W.P No. 1561 of 2023 Page | 13
Constitution to equal protection of law , read wi th his rights guaranteed under Articles 4 , 9, 14, 19 and 19 -A would stand breached. The second limb of the case is that the Federal Government is under a corresponding obligation to exercise its authority and discretion to constitute PTA in acco rdance with law. And where the Federal G overnment exercises its discretion to make an appointme nt to a public office or frames rules or criteria for appointment to a public office in a manner that is unfair and capricious, such action constitutes a breach of du ty to the citizens for whom the public office is m eant to discharge services, which breach is subject to judicial review on grounds of illegality, irrationality and procedural impropriety. 16. More particularly, while pointi ng out (i) how the creation of the office of Member (Administration) fell foul of the scheme of Sections 3( 8) and 3( 9) of the Telecom Act, and (ii) how the criteria advertised for such office was in conflict with the criteria prescribed for other members in the PTA Appointment Rules (as they existed at the time of publication of the Impugned Advertisement as well as at the time of appointment of respondent No. 4 as Member and Chairman PTA ) and was “unjustifiably discriminatory ”, it has been contended that the creation of the office as wel l as the prescription of criteria for such office were tailored to induct a pre -determined individual. The memo of the petition assert s that, ―the increase in the age limit also suggests that the respondents have already been tipped as to who the Member (Administration) is to be, and the statutory criteria have been relaxed to accommodate the said person.‖ W.P No. 1561 of 2023 Page | 14
17. There is no adequate remedy provided in law to adjudicate the assertion that the Federal Government is creating a public office and concocting eligi bility criteria tailored to…
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