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Official Citation: 2025 IHC 223206
Court / Jurisdiction: Islamabad High Court
Parties: Rabeeya Pervez vs Usman Zafar & others
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 223206. In this matter between Rabeeya Pervez and Usman Zafar & others, 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 Ms. Justice Saman Rafat Imtiaz) AUTHOR JUDGE: Honourable Ms. Justice Saman Rafat Imtiaz DECISION DATE: 09-JUL-2025 CASE NO: Intra Court Appeal-227-2022 CITATION: 2025 IHC 223206 PARTIES: Rabeeya Pervez VS Usman Zafar & others LAW / SECTION: - SUBJECT: Writ, REMARKS: ICA in WP 3426/2018: Qua Warranto Matter: Against appointment of Assistant Director, PTA. ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT) I.C.A. No. 227 of 2022 Rabeeya Pervez Versus Usman Zafar and others I.C.A. No. 228 of 2022 Usman Zafar Versus Federation of Pakistan and others I.C.A. No. 236 of 2022 Pakistan Telecommunication Authority Versus Usman Zafar and others Appellant by : Mr. Afnan Karim Kundi, Advocate. (in I.C.A. No. 227 of 202 2 and for the Respondent No.5 in I.C.A. No. 228/2022 and for the Respondent No. 4 in I.C.A. No.236/2022) Syed Khawar Ameer Bukhari and Mr. Muhammad Asif Javed, Advocates. (in I.C.A. No. 228 of 202 2 and for the Respondent No.1 in I.C.A. No. 227 and 236 of 2022) M/s Hafiz S.A. Rehman, Hafiz Hifz Ur Rehman, Muhammad Anwar Mughal, and Seikh Rizwan Nawaz, Advocates. (in I.C.A. No. 236 of 2022 and for the Respondent No.3 in I.C.A. No. 227 and 228 of 2022) 2 I.C.A. No. 227, 228, and 236 of 2022
SAMAN RAFAT IMTIAZ, J.- 1. This judgment shall decide the captioned ICA No. 227/2022 filed by the Appellant [Rabeeya Pervez ]; ICA No. 228/2022 filed by the Respondent No.1 [Usman Zafar]; and ICA No. 236/2022 filed by the Respondent No.3 [Pakistan Telecommunication Authority] under Section 3 of the Law Reforms Ordinance, 1972 against the Judgment dated 16-05- 2022 (“Impugned Judgment”) passed by the learned Judge-in-Chambers in Writ Petition No.3426/2018 , which was filed in the nature of quo warranto, by the Respondent No.1 to challenge the appointment of the Appellant as Assistant Director , Human Resources (HR) with the Respondent No. 3 on contract basis vide Memorandum dated 9-8-2005 and her subsequent promotion as Deputy Director on 10-02-2009. 2. Briefly stated, the facts of the matter on the record, are that the Appellant applied for the post of Assistant Director (HR) pursuant to the advertisement published in the “Daily Dawn” on 1-5-2005 according to which the requisite qualification in order to be eligible for the said post was MBA in Human Resources Management (HRM) from a recognized University. The Respondent No.1 alleged that the Appellant did not have the requisite qualification at the time of submission of her application for recruitment as Assistant Director (HR) and that her appointment was not only made in contravention of the conditions in the advertisement but by misrepresentation and based on false credentials. The Writ Petition No.3426/2018 was dismissed by the learned Judge -in-Chambers vide the Impugned Judgment which holds that a lthough all the requirements with regard to the issuance of writ of quo warranto stand fully satisfied however the Court was not persuaded to grant the Respondent No.1 the relief sought by him due to his conduct which does not reflect that he was challenging the appointment of the Appellant as a bona fide litigant. Respondents by : Ms. Kanz -us-Saadat, Deputy Attorney General.
Date of Hearing : 13-5-2025. 3 I.C.A. No. 227, 228, and 236 of 2022 3. ICA No. 227/2022 has been filed by the Appellant for setting aside observations made in paragraphs 12, 16, 17, 18, 21, 22, 23, 26, 27, 37, 45, 46, 61, 65, and 80 in the Impugned Judgment whereas the ICA No. 228/2022 has been filed by the Respondent No.1 for setting aside the Impugned Judgment while ICA No. 236/2022 has been filed by the Respondent No.3 assailing the Impugned Judgment to the extent of paragraph 16, whereby the learned Judge -in-Chambers holds that the Appellant being an employee of PTA working on a regular post of Director, Coordination, PTA is holding a public office . Since ICA No. 227/2022 is the leading case, the Respondents shall, for the sake of convenience, be referred to as such throughout the instant judgment notwithstanding that they are appellants in the connected ICAs instituted by them which too are being decided by this judgment. 4. The learned counsel for the Respondent No.1 drew the Court‟s attention to the advertisement for the post of Assistant Director (HR) to highlight that MBA in Human Resources Management (HRM) was required for the said post. He then referred to the Application of the Appellant whereby she has stated that she obtained her MBA in the year 2005. He submitted that this was a misstatement in view of her degree which was issued in the year 2007. He also drew the Court‟s attention to the final transcript of the Appellant whereby her internship and thesis was completed in the fall of 2006. Thus he argued that the Appellant did not have the requisite qualification at the time of her application which was based on misrepresentation. He submitted that the learned Judge-in- Chambers erred in concluding that the Respondent No. 1 did not establish his bona fide by not appreciating that he is a whistleblower. The learned counsel relied upon Dr. Shamim Tariq Vs. International Islamic University, Islamabad, 2020 PLC (CS) 499 ; and Muhammad Mun eer Malik Vs. Allama Iqbal Open University, 2016 PLC (CS) 896. 5. The learned counsel for the Appellant submitted that the Appellant completed her course work in the Fall Semester of 2004 whereas the only requirement remaining towards the completion of her degree was the 4 I.C.A. No. 227, 228, and 236 of 2022 internship and submission of thesis , which was completed in the Fall Semester of 2006. Therefore, for all practical purposes, the Appellant was under the impression that her degree was complete in the year 2005. He highlighted that the Appellant‟s MBA degree dated 3 -08-2007 confirms that the Appellant met all the requirements during the session of 2002 - 2004. He submitted that in any event an inquiry was held and th e irregularity, if any, was condoned. He emphasized that the Respondent No.1 could not establish his bona fide as he belongs to Mandi Bahauddin yet he ha d access to the internal documents of the Respondent No. 3 in Islamabad without plausible explanation. He relies upon Salahuddin Vs. Frontier Sugar Mills & Distillery Ltd. , PLD 1975 SC 244 and an unreported judgment of this Court titled Sajjad Ahmad Vs. Federation of Pakistan, Writ Petition No. 1476 of 2022. 6. The learned counsel for the PTA submitted that the learned Judge- in-Chambers has erred in concluding that the post in question is a „public post‟. He relied on various provisions of the Constitution particularly Article 199(1)(b)(ii) to submit that except certain positions the post of an independent entity such as PTA does not qualify as a „public post‟. Therefore he submitted that the writ filed by the Respondent No. 1 was not maintainable. 7. We have heard the arguments and perused the available record. 8. The writ petition was filed by the Respondent No. 1 against the Appellant; Respondent No.2 [ Cabinet Division, through its Secretary ]; Respondent No. 3 [ Pakistan Telecommunication Authority]; Respondent No. 4 [ Director General (HR), PTA]; Respondent No. 5 [Bahria University, Islamabad]; and Respondent No. 6 [ Federation of Pakistan through Secretary Establishment Division ] under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 9. Pursuant to Article 199(1)(b)(ii) of the Constitution, the High Court may, if satisfied that no other adequate remedy is provided by law, on application of any aggrieved party , make an order requiring a person 5 I.C.A. No. 227, 228, and 236 of 2022 within its territorial jurisdiction holding or purporting to hold a public office to show under what authority of law he/she claims to hold that office. The learned Judge -in-Chamber‟s vide the Impugned Judgment concluded that the requirements regarding issuance of writ of quo warranto stood satisfied (but dismissed the writ petition on the ground that the Respondent No. 1 failed to persuade that he is entitled to the relief sought by him by way of his conduct which does not reflect that he was challenging the appointment of the Appellant as Assistant Director with the Respondent No. 3 as a bona fide litigant). For the purpose of reaching the conclusion that the requirements regarding issuance of writ of quo warranto stood satisfied t he learned Judge -in-Chambers identified two main pre-requisites of a writ of quo warranto : (i) the appointment under challenge must be to a public office ; and (ii) the said appointment should have been made without authority of law or in other words contrary to the relevant statutory provisions1. 10. With regard to the first pre -requisite the Impugned Judgment holds that it is undisputed that the Respondent No. 3 is a public office since it is a creation of statute i.e. Pakistan Telecommunication (Re-Organization) Act, 1996 (“PTA Act”) and that as it has been established by the Federal Government therefore all functions performed by the Respondent No.3 in connection with the affairs of the Federation are in the nature of public functions/services. It is on this bas is that it has been concluded that the Appellant being an employee of Respondent No.3 working on a regular post is in fact holding an office falling within the ambit of the term „public office‟. 11. However, it is important to appreciate that the mere fact that an entity is established under a statute is not by itself sufficient to treat it as a „person‟ performing functions in connection with the affairs of the Federation for the purpose of judicial review under Article 199 of the Constitution2. At this juncture, we consider it is necessary to recall the test
1 Dr. Farzana Bari Vs. Ministry of Law, Justice and Human Rights, PLD 2018 Islamabad 127 2 Salman Shahid Vs. University of Management and Technology , 2022 CLC 1328 and Anoosha Shaigan Vs. Lahore University of Management Sciences , PLD 2007 Lahore 568 6 I.C.A. No. 227, 228, and 236 of 2022 that has been settled by the Supreme Court in order to determine whether a person including a body politic or a body corporate is performing functions in connection with the affairs of the Federation. Test to determine w hether a person including a body politic or body corporate is performing functions in connection with the affairs of the Federation? 12. Salahuddin Vs. Frontier Sugar Mills & Distillery Ltd., PLD 1975 SC 244 is the leading case in which the Supreme Court reflected on what is meant by the phrase „performing functions in connection with the affairs of the Federation‟ as follows: “Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province ." It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of publ ic power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities ; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State , i.e., by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Govern ment to create statutory corporations for unde rtaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red -tapism, these semi -autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Governmen t retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. ” [Emphasis added]. 13. The Supreme Court in Salahuddin (Supra) laid down the following primary test to determine whether a person including a body politic or body corporate may be regarded as a person performing functions in connection with the affairs of the Federation: (i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; (ii) whether the control of the organization vests in a substantial manner in the hands of the Government; and (iii) whether the bulk of the funds is provided by the State. 7 I.C.A. No. 227, 228, and 236 of 2022 14. The Supreme Court in Pakistan International Airline Corporation Vs. Tanweer -ur-Rehman, PLD 2010 SC 676 examined whether PIA is performing functions in connection with the affairs of the Federation in light of the test laid down in Salahuddin (Supra) as follows: “17. Adverting to the case in hand, keeping in view the dictum laid down in the above referred cases, now it would be examined whether the appellant-corporation is performing functions in connection with the affairs of the Federation. In the preceding para graphs, the purpose and functions for the establishment of the appellant -Corporation has been quoted with reference to sections 3 and 4 of the Act, 1956, which provides that appellant-Corporation shall provide and further develop safe, efficient, adequate, economical and properly coordinated air - transport service within and outside the country. At this juncture, reference to Federal Legislative List Part -I of Fourth Schedule (item No.24), would not be out of context, whereby the carriage of persons and goods by sea or air has been made the legislative subject of the Parliament. Similarly, under Schedule - II, item 5(20), Rules of Business, 1973, the appellant -Corporation has been included within the domain of Defence Division, Government of Pakistan. It is a lso apparent from the Act, 1956 that nine Directors of the appellant -Corporation, out of eleven, including the Chairman are to be appointed by the Federal Government. Although, the Government has no direct control in the appellant-Corporation as its affair s are to be managed by the Board of Directors under section 5 of the Act, 1956, but the fact remains that the Federal Government has power to issue directives to the Corporation on matters of policy if it considers necessary and such directives are binding on the Corporation. More so, the power to appoint Chairman and Directors remains with the Government and in addition to it the Government also holds the controlling shares of more than 50%. Further, the appellant -Corporation is providing carriage of perso ns and goods, which is one of the functions of the State, as mentioned in the Federal Legislative List and its affairs are indirectly controlled by the Defence Division of the Federal Government, therefore, the above test stands fully satisfied and we are persuaded to hold that the appellant-Corporation is performing its functions in connection with the affairs of the Federation. ” [Emphasis added]. 15. With regard to the three -pronged test, t he Sindh High Court in Muhammad Shahnawaz Vs. Karachi Electric Supply Company, 2011 PLC (C.S.) 1579 held that the three conditions comprising the primary test as per Tanweer-ur-Rehman (Supra) appear to be cumulative or conjunctive i.e. it would seem that all three must exist before the entity concerned can be regarded as performing functions in connection with the affairs of the State. The Sindh High Court held that despite the fact that the provision of electricity was once the exclusive domain of the State, Karachi Electric Supply Company (“KESC”) does not come up to the test laid down by the Supreme Court in the post -privatization scenario given that the control of 8 I.C.A. No. 227, 228, and 236 of 2022 the organization does not vest in the Government but lies with private management and particularly that though KESC enjoys a huge State subsidy nothing material in this regard was placed on the record to show that the bulk of the funds for KESC are still being provided by the State. 16. Similarly the Lahore High Court in Independent Media Corporation (Pvt.) Ltd. Vs. Federation of Pakistan, PLD 2022 Lahore 288 while deciding whether Pakistan Television Corporation Limited, a public limited company, can be regarded as a person performing functions in connection with the affairs of Federation or a Province applied both the functionality test as well as the financial test as follows: “4. Before I proceed further, two points need to be mentioned as some reference was made to them at the Bar. First, since both of these petitions seek orders in the nature of writ of mandamus and certiorari against the PTVC, a public l imited company, it must be settled at the outset whether it should be regarded as a person performing functions in connection with the affairs of the Federation or a Province . The diagnostic tool for such like issue is functional realism and not facial cos metics. It is a matter of common experience that the Government ordinarily acts through the instrumentality or agency of natural persons or it employs the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service. But as the tasks of the Government multiplied with the advent of the Welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialized and highly technical in character and thus, it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in thes e circumstances the corporation came into being as the third arm of the Government and over the years it has been increasingly utilized by the Government for setting up and running public enterprises and carry out other public functions. It is apposite to state that it is immaterial for the issue, under discussion, whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those wh ich are not. Notwithstanding the above, few things are now clear, that is, firstly, if the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government, secondly, if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government, thirdly, where the fin ancial assistance of the Government is so much as to meet almost entire expenditure `of the corporation, it would afford some indication of the corporation being impregnated with 9 I.C.A. No. 227, 228, and 236 of 2022 governmental character, and fourthly, existence of deep and pervasive Government control may afford an indication that the corporation is a Government agency or instrumentality 1. It is in the light of this discussion that we must now proceed to examine whether the PTVC is an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum and Articles of Association of the PTVC. The Board of Directors of the PTVC is appointed by the Government of Pakistan. The PTVC i s a public limited company with an authorized capital of Rs.3.000 billion and the Government holds entire paid up share capital of Rs.1529.300 million. The objective of the PTVC is to establish a network of television stations in Pakistan by erecting, cons tructing, maintaining and improving television stations at places approved by the Government of Pakistan, and to carry out instructions of Government of Pakistan with regard to general pattern of policies of programmes, announcements and news etc. It will thus, be seen that the Government of Pakistan has full control of the working of the PTVC and it would not be incorrect to say that in the affairs of the PTVC, the voice is of the Government of Pakistan and the hands are also of the Government of Pakistan. I must, therefore, hold that the PTVC is an instrumentality or agency of the Government and does fulfill the above -stated diagnostic test to qualify as a person performing functions of the Federation.” [Emphasis added]. 17. This Court in Miss. Summara Nayaz Vs. FOP through Secretary Establishment Division, 2015 PLC (CS) 671 also held that the test relevant for determination of status of a person performing functions in connection with the affairs of Federation, etc. is the administrative and the financi al control of the Federation over the entity in question. The Supreme Court in Abdul Wahab Vs. HBL , 2013 SCMR 1383 and then again in Pakistan Olympic Association Vs. Nadeem Aftab Sindhu, 2019 SCMR 221 held that for purposes of resorting to the function test two important factors are most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in controlling the affairs thereof. 18. Having said that the Supreme Court in Aitchison College, Lahore Vs. Muhammad Zubair, PLD 2002 SC 326 held that the Board of Directors of Aitch ison College, Lahore squarely falls within the definition of a „person‟ under Article 199 (5) of the Constitution even though the College does not get any financial assistance from the Government. The Supreme Court took into view the direct role of the Board in the affairs of the educational institution of which the Chairman is the Governor, Punjab and also includes Ex -Officio Members . It was specifically observed that Aitcheson College has been brought under the administrative control of the 10 I.C.A. No. 227, 228, and 236 of 2022 education department of Punjab and as such concluded that such body would be working for the affairs of the Province. Moreover, the Board of Governors framed statutes to acquire the service of any employee of the Provincial Government on deputation to look after the affairs of the College. In such background the Supreme Court held that merely on account of not getting financial assistance the Aitchison College cannot be considered to be an educational institution not functioning under the control of the Provincial Education Department. The three member Bench of the Supreme Court in Aitcheson College (Supra) expressly referred to Salahuddin (Supra) pronounced by a Bench comprising an equal number of judges and explained that the test provided in the earlier judgment stands fully satisfied and the Aitcheson College falls within the definition of a „person‟ as used in Article 199(5) of the Constitutio n even if it is presumed for the sake of argument that no financial aid is being provided to the College from the Provincial public exchequer as even then the College remains in the dominating control of the Provincial Government through its Board of Governors headed by the Governor of the Province. 19. With regard to conflicting opinions on a question of law between two Benches of the Supreme Court, t he Sindh High Court in Muhammad Shahnawaz (Supra) explained that there is no dispute with the proposition of law that the one declared by the Larger Bench would prevail over the one pronounced by the s maller Bench. I f a s maller Bench interprets a decision of a Larger Bench of the Supreme Court in a different way which may be opposed to the one taken by the Larger Bench a subsequent co - ordinate Bench of the Supreme Court may refuse to follow the interpretation of the latter on the ground that it proposes to follow the earlier view expressed by a Larger Bench. But if the subsequent decision of the smaller Bench explaining the Larger Bench is placed before a High Court the latter is bound to follow the subsequent one…
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