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Petitioner: Mirza Luqman Masud and others VS Respondent: Chairman NAB and others
Court Name: Supreme Court of Pakistan Judge(s): Amir Hani Muslim, Qazi Faez Isa, Sardar Tariq Masood Title: Mirza Luqman Masud and others vs Chairman NAB and others Case No.:Suo Moto Case No. 13 of 2016, Civil Misc. Applications No. 5811, 5887, 6001,
JUDGMENT
Reported As: 2017 SCMR 838, 2017 P.S.C. 565 Result: Order accordingly Judgment JUDGMENT AMIR HANI MUSLIM, J. --- These Sou Moto proceedings were initiated under Article 184(3) of the Constitution of Pakistan on an anonymous application/letter wherein it was alleged that illegalities, contraventions and violations were committed/made in the appointments made in the National Accountability Bureau ("NAB"). It was, inter alia averred that NAB, which was the apex anti- corruption body of the country, had never come under legal scrutiny and the judgments of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCM R 1752) and Ali Azhar Khan Baloch v. The Province of Sindh (2015 SCM R 456) were not followed to streamline the service structure within NAB. It was further stated that there were a number of officers who lacked the eligibility criteria prescribed in the rules made pursuant to the National Accountability Ordinance, 1999 ("the NAB Ordinance") were still working in NAB in different capacities. The said rules, which have been made pursuant to the NAB Ordinance, are the "National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002" ("the TCS"). Pursuant to the TCS Rules the methods of appointment and qualifications were prescribed in the "National Accountability Bureau (NAB) Methods of Appointment and Qualification (MAQ)" ("the MAQ"). After registering the said application/letter as a Sou Moto Case under Article 184(3) of the Constitution, notices were issued to the learned Attorney General for Pakistan and the Chairman NAB. When this case was fixed on 23.09.2016, it was observed by this Court as under:-- "2. We have gone through the concise statement filed by the NAB and have noticed that appointments made in the NAB are, prima facie, violative of the principles enunciated by this
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Court in the cases reported as Contempt Proceedings Against Chief Secretary, Sindh and others (2013 SCMR 1752) and All Azhar Khan Baloch v. Province of Sindh and others (2015 SCMR 456). The NAB has taken the stance that these judgments do not apply to their employees on the ground that they are not civil servants. This stance is completely in conflict with the observations made by this Court in para 121 of the judgment All Azhar Khan Baloch (supra) where this Court has held that the principles laid down in aforesaid judgments would be applicable to the civil servants, Government servants and all other employees serving in different statutory organizations which are working under the administrative control of the Government." 2. Notice of the proceedings as contemplated under Order XXVII-A, C.P.C. was also given to the learned Attorney General for Pakistan vide order dated 24.10.2016. Furthermore, NAB was required to file service profile of the officers whose appointments were challenged through different CMAs, inter alia, on the ground of legal infirmities in their appointments. In compliance with this direction, NAB filed a report (C.M.A. No. 8114/2016) setting out the infirmities in the appointments made in NAB, but as this Court was not satisfied with the report it was decided to take up the case of all the officers/officials named in the said report and decide their fate on merits in accordance with law. Notices were issued to all the concerned officers/officials vide order dated 7.12.2016. Thereafter, on 12.01.2017, this Court observed as under:--- "We have heard the learned Counsel for the NAB and have perused the report submitted by the committee on the issue of appointments made in the NAB. We are not satisfied with the report. The stance of the NAB that a committee comprising senior officers of the NAB and the Establishment Division was constituted to scan the appointments made in the NAB, is also incorrect, as the report submitted by the NAB reflects that the representative of the Establishment Division has not signed it. 2. With the consent of the learned Counsel for the NAB and the Counsel representing the parties present in Court, we direct the Secretary, Establishment Division, Government of Pakistan, to scrutinize as to whether all the appointments / promotions / absorptions / deputations and appointments on contract basis made in the NAB since 2002 till date are in conformity with -the National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) 2002, and National Accountability Bureau Methods of Appointment and Qualification (MAQ) 2002 (amended from time to time) and whether the officers who were appointed/promoted/absorbed/ appointed on deputation or on contract basis hold the qualification/relevant experience in the required field and these appointments were in conformity with the principles laid down by this Court in the cases of Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali. Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456). A detailed report against each appointment / promotion / absorption / deputation made in BS-16 to BS-22 in the NAB shall be submitted by the Secretary. The Secretary, Establishment Division, may summon the original service profile of the officers of the NAB which shall be provided to him immediately without delay. The Chairman, NAB, and all his subordinates shall extend full co-operation to the Secretary, Establishment Division, in this exercise, which shall be completed within 04 weeks from the date of communication of this Order. 3. A copy of the report submitted by the NAB shall also be provided to the Secretary, Establishment Division, for his perusal which may be of some assistance to him in completion of the task. Copy of this order shall be faxed immediately to the Chairman, NAB, the Secretary, Establishment Division and Attorney General for Pakistan for their information and compliance." 3. Thereafter, when this case was fixed on 22.03.2017, it was observed by this Court as under:--- "... According to the Secretary, Establishment nine officers lacked inherent qualification for appointment to the post. In addition with regard to the issue of promotion where, according the Secretary, Establishment, there are many inconsistencies. The Secretary, Establishment has not
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given his own opinion as to whether these officers qualified to be retained in the office or not. Kh. haris Ahmed, learned Sr. ASC is put on notice to go through the report and make statement as to whether the discrepancies in the appointments/promotions are correct and whether in particular the nine officers pointed out by the Secretary, Establishment had the requisite qualification on the date of their appointment and, if they did not whether such officers were entitled to subsequent promotions. He states that he will examine the report of the Secretary, Establishment with regard to the inherent disqualification of nine officers, the promotion that were given and whether the appointments by promotion or absorption were inconformity with the principles laid down by this Court in the judgments reported as: Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752), All Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Ch. Muhammad Akram v. Registrar, Islamabad High Court (PLD 2016 SC 961). Kh. Muhammad Haris, learned Sr. ASC will file a report which will cover all material aspects as pointed out by Secretary Establishment..." Following the above-mentioned directions, NAB submitted its response, through C.M.A. 1748 of 2017, which states that to the extent of some of the officers they agree with the report of the Secretary Establishment. 4. Khawaja Harris Ahmed, Senior ASC appeared as Counsel for the NAB and made a statement on behalf of NAB and the Chairman NAB, stating that the list of nine officers who were found to have inherent disqualifications in their appointments according to the report of the Secretary Establishment can be divided into two sets of officers. The first set of officers comprises of three officers with regard to whom NAB has no dispute with the findings of the Secretary Establishment that they did not meet the stipulated qualification and were inherently disqualified. The second set comprises of six officers whose induction in NAB according to his understanding is protected by a 'deeming clause' which is sub-rule (2) of Rule 14.03 of TCS. This 'deeming clause, according to him, provides that officers who have been inducted in NAB under Rule 14.03 of the TCS will be deemed to be 'transfer employees' for all purposes under the TCS and the requirements of TCS will not apply to them. He further contends that Rule 3.30 of TCS would not be attracted in the case of induction of these employees who were already serving in NAB. In an attempt to explain his interpretation of the deeming clause in sub-rule (2) of Rule 14.03 of TCS, he stated that the last line of the said sub-rule provides that those inducted in NAB through Rule 14.03 shall be deemed to be appointments by transfer "for all purpose of the TCS". By virtue of this phrase, he states, that the relevant rules applicable to appointment by transfer in part IV of the TCS titled 'Appointment by Transfer' which prescribe that three elements need only to be fulfilled, which are that the appointment must be in the public interest (Rule 3.28 of TCS), only regular incumbents be considered (Rule 3.29 of TCS) and employees possess qualifications required for initial appointment to the relevant post (Rule 3.30 of. TCS). These elements, he contends, are presumed to have been fulfilled by an inductee by operation of the deeming clause. In this regard he has referred to the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). 5. The learned Senior ASC next contends that there are three main categories of appointments mentioned in the report of the Secretary Establishment Division wherein inconsistencies were found in the mode of appointment; i.e. (i) appointment by initial appointment (ii) appointment by induction and (iii) appointment by promotion. Regarding the first category, in which employees were inducted through initial appointment, he states that there were 629 appointments made in NAB, out of which in 101 appointments inconsistencies were found in the report of the Secretary Establishment and NAB agrees that there were inconsistencies in 48 appointments and states the concerned officers will be de-notified. He further stated that apart from these, there are twelve (12) officers who are no longer in the service of NAB and that NAB does not agree with inconsistencies found in the appointments of the remaining 39 officers. 6. With regard to the second category, where appointments were made by promotion, the
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learned counsel states that the said report reflects that 561 appointments were made by promotion within NAB out of which inconsistencies were found in only 133 appointments and out of these 35 officers have retired. He submitted that NAB agrees with the findings of inconsistencies in 102 of these appointments except four officers who were pointed out in Annexure IV of the said report, namely: (1) Khalid Mehmood, (2) Ansar Yaqub, (3) Saleem Chandio and (4)Afshan Basharat. Regarding these four officers he states that their appointments were governed by Rule 14.02 of the TCS. He states that Khalid Mehmood was appointed on deputation basis in NAB from the Accounts and Works Department Punjab in the year 2007. He states that Khalid Mehmood and Ansar Yaqub were promoted on the decision of the Federal Service Tribunal and since there is no provision in the TCS that provides for the fate of appointments by promotion given by a Service Tribunal's decision, Rule 14.08 of the TCS applies to their appointments which provides that "in matters not covered under the TCS the employees of NAB shall be governed by the rules applicable to the other civil servants and the instructions issued from time to time by the Federal Government on such subject'. He further contends that the third officer namely Saleem Chandio was given a conditional promotion on the recommendations of the DPC and his case too is, therefore, distinguished and attracts special treatment on this ground. As regards the fourth officer Afshan Basharat she was given conditional promotion on the ground that her senior was resigning and thereafter she was promoted when the resignation of her senior was finalized and contends that Rule 3.24 of TCS applies to her appointment by promotion. 7. Khawaja Haris Ahmed, learned ASC then contends that in the third category of appointment, which was by induction, there were 32 officers who were inducted in NAB pursuant to Rule 14.03 of the TCS. He submitted that proviso (i) of paragraph 2 of the MAQ specifically addressed the treatment of officers who had been working in NAB on transfer/deputation basis for the past one year prior to the promulgation of the MAQ. The proviso states that vacancies will be reserved for such employees against the posts equal to those already held by them on regular basis in their parent departments in terms of Rules 14.02 and 14.03 of the TCS. He further submits that out of these 32 officers only 15 are still in service while the rest have retired. Out of these remaining 15 officers, six (6) officers have been cleared by the Secretary Establishment in his report. He contends that one of these nine (9) officers is Aliya Rasheed and NAB agrees with the findings of the report of the Secretary Establishment in her case. He, however, states that she has been retained in NAB on the basis of judgments of this Court in her favour. A judgment of this Court passed in CP No. 1632/2011 decided on 2.12.2011 wherein this Court observed that her appointment, future promotion or career shall not be affected in any manner and the second judgment of this Court in HRC No. 1305-G/2009 wherein it was observed by this Court that she should not be discriminated against with regard to her promotion. 8. The learned counsel further contends that another officer, S.M. Hasnain, did not complete the one year period of service in NAB as per proviso (i) of para 2 of MAQ before his induction. With regards to his induction Khawaja Haris Ahmed submits that a lenient view may be taken as he was short of the requisite experience by only a few months. Regarding the remaining seven 7 officers, he contends that NAB agrees that the required qualifications were not met by these officers, however, these officers do not need to comply with the said requirements as proviso (i) of para 2 of MAQ read with Rule 14.03 of TCS governs their induction. He submits that sub-rule (2) of Rule 14.03 contains a deeming clause whereby employees inducted from the Federal Government, other than those from the Armed Forces, could exercise a one time option for their absorption and would be deemed to have been appointed on transfer under the TCS, subject to the consent of the competent authority of their parent department and the approval of the appointing authority in NAB. 9. Khawaja Haris Ahmed, ASC learned counsel further argued that apart from these nine officers,
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there was one more officer, namely, Zia Ullah Khan Toru who is currently serving as Deputy Director (BS-20) in NAB. This officer was continuing on the basis of a judgment in his favour from the Peshawar High Court. This judgment was appealed before this Court but the petition was dismissed therefore, Zia Ullah was appointed in NAB without an advertisement, and without meeting the requisite academic qualification criteria. 10.Mr. Waqas Qadeer Dar, the Prosecutor General ("PG") NAB, stated that in the MAQ the qualifications required for appointment, in the Schedule under 'Academic Qualification' also includes "any qualification approved by the competent authority". He contends that the said word "any" is of wide import and would include any qualification. In this regard he referred to the case of iInamur Rehman v. Federation of Pakistan (1992 SCMR 563) and regarding interpretation of word "qualification" he referred to the case of Noorul-Ameen v. Muhammad Abdul Qayum Khan (1991 MLD 2658). 11. Malik Muhammad Qayyum, learned Sr. ASC, appeared on behalf of Major (Retd.) Shiraz Naeem, who is curreiitiy serving in the NAB as Director on "Own Pay Scale" (OPS). The learned Senior ASC contends that Major (Retd.) Shiraz Naeem was previously serving in the Pakistan Army and was sent on deputation to NAB. Thereafter, he served in NAB on deputation from 1999 till the year 2003 after which he retired from the Pakistan Army and was inducted in the NAB under the TCS. He pointed out that Major (Retd.) Shiraz Naeem possessed the required academic qualifications since he had a Masters Degree in Computer Sciences and therefore, he did not have any inherent disqualification. He also submits that the report of the Secretary Establishment had no adverse findings against his appointment. Malik Muhammad Qayyum, learned Sr. ASC also appeared on behalf of Maj. (Retd.) Shehzad Saleem and contended that at the time of his induction in NAB he fulfilled all the codal formalities, therefore, his induction was in accordance with the law/rules. 12. Mr. Ahmed Awais, learned ASC, appeared on behalf of Brig. (Retd.) Farooq Naseer Awan and contends that the applicant was directly appointed as Director General (BS-21) in NAB in the year 2013 and fulfilled the requisite academic qualifications prescribed in the MAQ since he had a B.Sc. degree as well as M.Sc. degree. With regard to his mode of appointment, he contended that 307 candidates had applied for the said post in February 2013 and he was duly selected. Despite there being no irregularity in his appointment he contends that his case falls in the list of 48 officers regarding whose appointment NAB agrees with Secretary Establishment's report that inconsistencies existed. 13.Hafiz S.A. Rehman, learned ASC, appeared on behalf of Aliya Rasheed in CMA No. 7192 of 2016. He contends that Aliya Rasheed was appointed in NAB on 26.06.2003 pursuant to a directive by the then Prime Minister on account of her being an exceptional tennis star who represented the country in various international tennis tournaments. He contended that she had never been involved with or assigned any investigation related matter throughout her service in NAB and was only involved in raising awareness against corruption. He next contended that her appointment was not made under the TCS or MAQ but was made pursuant to the said policy of the Prime Minister. He concedes that no other sports person was appointed in NAB pursuant to this policy. He next contends that she has been retained in NAB on the ground of judgments of this Court in her favour, passed in CP No. 1632/2011 decided on 2.12.2011 wherein this Court observed that her appointment, future promotion or career shall not be affected in any manner and the second judgment of this Court in HRC No. 1305-G/2009 wherein it was observed that she should not be discriminated against with regard to her promotion. 14. Mr. Shoaib Shaheen, learned ASC, appeared on behalf of the applicants namely, Major (Retd) Shabbir ahmad and S.M. Hasnain. He contends that both of the applicants were appointed in NAB pursuant to Rules 14.02 and 14.03 of the TCS. He also contends that although Major (Retd) Shabbir Ahmed did not initially have the required qualifications for the post of Deputy Director (BS-20) on
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30.09.2003 when he was absorbed in NAB, he had later acquired an LL.B. degree in the year 2005 and then an MBA degree in the year 2005 and then an MBA degree in the Year 2010. He submits thaty recent judgment of this court in the case of DCO/Chairman District Recruitment Committee Khanewal v. Kishwar Sultana (Civil Appeal No. 843 to 863 of 2012 etc) supports the proposition that where a person lacks the qualifications required for initial appointment to a post, he may acquire the required qualification later to cure the defect with respect to the case of the applicant S.M. Hasnain, he contends that the said officer did not complete the one year period of service in NAB as per proviso (i) of para 2 of MAQ before his induction, however he had four years of experience in the anti-corruption Establishment. He also referred to Rule 14.01 of the TCS whereby the chairman if he is satisfied may relax any provision or condition. 15. Dr. Shaista Nuzhat who was previously employed in NAB and is now serving in the Establishment Division in BS-19, appeared in CMA No. 6980/2016 and submitted that she only wanted to place some facts on record regarding the appointment of Ms. Aliya Rasheed. She contended that Ms. Alilya Rasheed was initially a project employee in the ministry of Education, remained on contract basis in the said Ministry and was never appointed on regular basis. Thereafter,:- she Wail'appOinted in NAB in BS-18 on contract basis and was inducted after two months in BS-149. She further contended that Prime Minister had twice for her appointment but she was appointed in NAB in violation of the law/rules. 16. Maj. (Retd) Syed Burhan Ali appearz in person and contends that he is presently posted as Director General NAB, Lahore (BS-20). While giving details of the process of his induction in NAB, he contends that he was a serving Major in Pakistan Army and was appointed on deputation to NAB as Deputy Director (B-18) in the year 2000, following which his induction took place on 30.9-2003. He next contends that he was holding a B.Sc. degree at the time of his induction and his case fell in the category of those officers who possessed "any qualification approved by the competent authority" as stipulated in the qualification requirement for the post of Deputy Director (BS-18) under the "Academic Qualification" in the Schedule to MAQ, therefore, the qualifications which were relevant for other to Rule 1.02 (b) of the TCS, submitting that his case falls within the ambit of those officers on deputation who were excluded from the application of the TCS even though after induction he was no longer a deputationist. 17. Maj. (Retd) Tariq Mahmood Malik, Director General NAB, Balochistan, appeared in person and contended that his case was similar to that of Maj. (Retd) Syed Burhan Ali. He contends that he was holding a B.Sc. degree at the time of his induction and his case fell in the category of those officers who possessed "any qualification approved by the competent authority", therefore, the academic qualification which were relevant for other officers were not attracted in his case. He also referred to Rule 1.02 (b) of the TCS, submitting that his case falls within the ambit of those officers who were on deputation and had been excluded from the application of the TCS even though after induction he was no longer a deputations 18. Chairman NAB, appeared in Court and was confronted with his opinion about those officers who did not have the requisite academic qualifications for their appointment and are serving in NAB, and why these officers had not been de-notified as yet. In response to this he stated that he agreed that the qualification/criteria prescribed in the TCS and the MAQ cannot be compromised, therefore, the officers who lacked the required qualifications at the time of their appointments, should indeed be de-notified. 19. On 28.03.2017 the Chairman NAB submitted that with regard to the nine officers who were found to have inherent disqualification in their appointments in the Secretary Establishment's report, two Directors namely Muhammad Younas and Capt. (Retd.) Farrukh Naseem Akhtar have opted for voluntary retirement, whereas, two other officers, namely, Col. (Retd.) Naeem and Sq. Ldr. (Retd.)
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Tariq Nadeem serving as DG and Director respectively have retired. He further submits that two officers, namely, Syed Muhammad Amir (Additional Director) and Ansar Yaqub (Deputy Director) have opted for repatriation to their parent departments. He stated that Ms. Aliya Rasheed, who was not amongst these nine officers, was offered voluntary retirement but chose not to opt for the same and contest her case on merits. He next states that the issue now remains only with regards to three officers, namely, Maj. (Retd.) Syed Burhan Ali, Maj. (Retd.) Tariq Mahmood Malik and Maj. (Retd.) Shabbir Ahmed. 20.When this matter was fixed on 28.03.2017, the following order was passed by this Court:-- "We asked the Chairman, NAB to respond to the option which this Court had extended to the nine officers against whom the report submitted by the Secretary, Establishment Division, Government of Pakistan and which was concurred by NAB that the said…
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