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Petitioner: Qazi MUSTAFA KAMAL VS Respondent: FEDERATION OF PAKISTAN through Secretary Establishment DivisionHonorable Justice Shaukat Aziz SiddiquiBarrister Faisal Khan Toru,Fazal-ur-Rehman Khan Niazi
2015 P L C (C.S.) 37
[Islamabad High Court]
Before Shaukat Aziz Siddiqui, J
Qazi MUSTAFA KAMAL
Versus
FEDERATION OF PAKISTAN through Secretary Establishment Division and others
Writ Petition No.2152 of 2014, decided on 24th June, 2014.
(a) Constitution of Pakistan---
----Art. 199---Judicial review---Constitutional petition before the High Court---Maintainability---Alternate remedy---Scope---Judicial review could be exercised if the alternate remedy was not adequate or efficacious---Alternate remedy must be capable of achieving the same purpose as was sought to be achieved through the constitutional petition.
2012 SCMR 455 and PLD 2012 Sindh 425 rel.
(b) Constitution of Pakistan---
----Arts. 184(3) & 199(1)(b)(ii)---Constitutional petition before the Supreme Court/High Court---Quo warranto, writ of---Maintainability---Contents of petition---Conduct of petitioner---In writ petitions in the nature of quo warranto, the message was more important than the messenger---Contents of such petitions generally override concerns arising on account of the conduct or antecedents of a petitioner.
2013 SCMR 1159 and PLD 2012 SC 132 rel.
(c) Constitution of Pakistan---
----Art. 199(1)(b)(ii)---Quo warranto, writ of---Laches---Laches did not apply to writ of quo warranto as the cause of action was a recurring one, so long as the public office was being held by the person in question---Unlawful holding of a public office was a continuing wrong, which may be called into question by anyone, at any time.
2010 PLC (C.S.) 731; PLD 2010 Lah. 625 and 2002 PLC (C.S.) 274 rel.
(d) Constitution of Pakistan---
----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope---Public office---Recruitment process---Subject to judicial review---Entire process of recruitment leading to appointment to a public office could be subjected to judicial review under Art.199(1)(b)(ii) of the Constitution---Such process had to pass the test of law, which included the settled principles of due process, openness, fairness, participation and transparency---Recruitment process must be above board and devoid of the slightest smear of nepotism---Court was under an obligation to judicially review the integrity of the entire selection process to a public office.
(e) Constitution of Pakistan---
---Art. 199(1)(b)(ii)---Government of Pakistan, Establishment Division Notification No. 6/4/1996.R-3 dated 22-07-2013---Quo warranto, writ of---Pakistan Television Corporation (PTVC)---Managing Director, post of---Selection process---Eligibility criteria for candidates--- Change in eligibility criteria to accommodate a specific candidate---Legality---"Person specific criteria"---Nepotism and favouritism---Arbitrary and colourable exercise of authority--- Making of false statements, misrepresentation and cheating during interview for selection---Respondent was appointed to post of Managing Director, PTVC, which was challenged by the petitioner by way of present constitutional petition---Process of appointment of Managing Director, PTVC was initiated through advertisement---Various criteria for eligibility for said post were changed twice through further advertisements, without any plausible rationale or justification---Educational requirement for a candidate was initially advertised as a Master's degree but was subsequently lowered to a Bachelor's degree, without any apparent reason---Grade 15 or 16 employee of PTVC were required to have a Master's degree as a bare minimum, thus it was all the more surprising that educational requirement for head of PTVC was lowered to a Bachelor's degree---Furthermore in terms of the revised advertised criteria educational qualification of Bachelor's in Arts and Social Sciences was added, whereas requirement of providing "written evidence" of 15 years work experience was changed to "established track record" of 15 years work experience---Such changes in eligibility criteria was to accommodate the respondent who only had a Bachelor's in Arts and was not able to provide written evidence of work experience from some of his past employers---Eligibility criteria was changed/ manipulated and maneuvered to enable the respondent to apply for the post of Managing Director, PTVC---Furthermore a company owned by respondent was a long standing defaulter of PTVC---Established liability of respondent towards PTVC existed at the time when process of recruitment for the post in question had already commenced---Respondent did not pay PTVC the outstanding amount till notification of his appointment as Managing Director, PTVC---Subsequently PTVC did issue a clearance certificate to the said company owned by respondent but only after he had been appointed to the post of Managing Director---During his interview by Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), the respondent made a false statement before the said Commission to the effect that companies owned by him or his spouse did not have any outstanding liabilities towards PTVC---Respondent misled and cheated the said Commission and committed criminal act of making false statement and misrepresentation--- Commission (FCHPSO) recommended names of two candidates to the Prime Minister for the post of Managing Director, PTVC, which recommendation was binding---Name of respondent was placed at number 2 on the list on order of merit, but astonishingly the Prime Minister exercised his discretion by disregarding the name of candidate placed at number 1, and without any reason recommended appointment of respondent, who was placed at number 2 on the merit list---Such exercise of discretion was arbitrary and colourable exercise of authority---In the context of selection through open advertisement, merit and interview/short-listing process, it was all the more important that the person selected by the Commission (FCHPSO) as the most suitable candidate for the job, was appointed to such post, rather than giving the concerned authority the option or discretion of hand picking and choosing any person out of the list provided---Respondent also had his own private production company which sold its products to PTVC, thus he was disqualified to be even considered for the post of Managing Director, PTVC as his personal interest clashed with the interest of PTVC---Respondent was appointed as Managing Director, PTVC, with immediate effect, prior to settlement of the terms and conditions of his service, including salary, perks and other privileges, which fact spoke volumes of the pre-conceived intention of the concerned authority in constructing the appointment of respondent to the post in question---High Court declared appointment of respondent as Managing Director, PTVC as non-transparent, non-competitive and illegal---Constitutional petition was allowed and High Court directed that respondent shall forthwith cease to be Managing Director, PTVC, and Chairman of the Commission (FCHPSO) should re-initiate the competitive process of appointment of Managing Director, PTVC, afresh strictly in line with the guidelines laid down by the Supreme Court in the case of Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205].
2013 PLC (C.S.) 1147; Khawaja Asif's case 2013 SCMR 1205 and PLD 2012 SC 132 ref.
(f) Civil service---
----Appointment---Government of Pakistan, Establishment Division Notification No.6/4/1996.R-3 dated 22-7-2013--- Para.4(vi)---Appointment of head of a public sector organization--- Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), recommendation of---Recommendation of FCHPSO to the competent authority regarding selection/appointment of head of a public sector organization was binding.
(g) Constitution of Pakistan---
----Art. 199(1)(b)(ii)----Quo warranto, writ of---Public office, appointment to--- Recruitment/selection process--- Discretion of appointing authority---Subject to judicial review---Appointing authorities could not be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they were bound to act fairly, evenly and justly---Exercise of power by such appointing authorities was judicially reviewable.
(h) Discretion---
----Structured discretion, exercise of---Scope---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirements of due process, transparency, fairness and safeguarded discretion against the vice of discrimination and arbitrariness.
2010 SCMR 1301 ref.
Barrister Faisal Khan Toru, Ms. Hadiya Aziz and Khubab Aziz for Petitioner.
Fazal-ur-Rehman Khan Niazi, D.A.-G. for Respondents.
Muhammad Nazir Jawad and Feisal Hussain Naqvi, Advocate Supreme Court for Respondent No.2.
Muhammad Akram Sheikh, Senior Advocate Supreme Court, Ch. Hassan Murtaza Maan and Sultan Hayat Ranjha for Respondent No.3.
Date of hearing: 16th June, 2014.
JUDGMENT
SHAUKAT AZIZ SIDDIQUI, J.--- Petitioner invoked the constitutional jurisdiction of this court by way of filing the instant writ petition with the following prayer:---
"Under the circumstances expounded above, it is most respectfully prayed that while accepting the instant constitutional petition, the impugned Notification No.1/42/2004-E-6 dated 27-2-2014 issued by respondent No.1 and office order dated 28-2-2014 may kindly be declared null and void ab initio as respondent No.3 stands disqualify also in terms of section 97(c) of Memorandum of Articles of Association of PTVC Limited and in violation of directions of honourable Supreme Court, Islamabad High Court, Islamabad and laws. The post of MD PTVC be re-advertised and High Powered Selection Committee may also be strengthened to select the right candidate as per directions of the Supreme Court and Islamabad High Court. Moreover, the respondent No.3 may be stopped to perform the functions and act as MD PTVC being recruited through unlawful process of recruitment."
And presented the facts as under:---
2. That the petitioner is presently performing his duties as Director Special Assignments, Pakistan Television Corporation Ltd. ("PTVC"), Islamabad, having an experience of over 28 years in PTVC. That the respondent No.2 prepared the case for the appointment of Managing Director, PTVC and advertised the said post by inviting applications from suitable candidates as per the given qualification, experience and other terms and conditions published in the Daily Dawn dated 30-4-2013 ("the First Advertisement"). Later on, the respondent No.2 re-advertised the said post vide advertisement published in the Daily Jang dated 9-10-2013 ("the Second Advertisement"), whereby, firstly, the required academic qualifications were lowered from a Masters Degree to a Bachelors Degree in Mass Communication or Journalism, secondly, the age limit was relaxed and, thirdly, the required work experience of twenty (20) years was reduced to fifteen (15) years. It was contended that this was done purely to make the said advertisement person-specific for the benefit of respondent No.3. Subsequently, a Corrigendum was also published in the Daily Nation dated 16-10-2013 ("Corrigendum") which amended the Second Advertisement further as follows: (a) the contractual term was revised from two (2) years to three (3) years; (b) the degrees of Bachelors in Arts and Social Sciences were added in the list of academic qualifications required for this position; (c) "written evidence" of fifteen (15) years work experience was changed to "established track record" of fifteen (15) years experience; and (d) the remuneration for this position was changed from that of an MP-1 scale to such package as may be negotiated by the parties, keeping in view the last pay drawn by the successful candidate from the private sector, without fixing any upper limit of remuneration. Thereafter, the respondent No.3 applied for the said post of MD PTVC when the stage was all set for him, in a pre-planned manner and was, subsequently, appointed as MD PTVC vide Notification dated 27-2-2014.
3. It was averred by the learned counsel for the petitioner, Barrister Faisal Khan Toru, that such appointment was in clear violation and against the directions of the Hon'ble Supreme Court of Pakistan given in its judgment titled "Khawaja Muhammad Asif v. Federation of Pakistan and others", reported as 2013 SCMR 1205, as well as the Islamabad High Court's judgment dated 8-5-2013 passed in W.P. No.1874 of 2013, against the provisions of the Companies Ordinance, 1984, rules of natural justice and all other applicable laws. It was contended that the respondent No.3 has been appointed as MD, PTVC despite the fact that he was an established defaulter of PTVC to the extent of Rs.14.139 million, as evidenced by the minutes of meeting dated 17-6-2013 of the Dispute Resolution Committee of PTVC, as well as the reconciliation statement dated 7-11-2013 issued by Mr. Matloob Ahmad Khan, Director Finance, PTVC. That, as such, even the respondent No.5 (Chairman, High Powered Selection Committee) failed to exercise his role and responsibilities with regard to the selection of respondent No.3 by inter alia ignoring the defaulter status of the respondent No.3 for the last ten (10) years and also ignoring the order of merit and short-listing conducted by Messrs A.F. Ferguson & Co.
4. Learned counsel further argued that the Prime Minister of Pakistan exercised his discretion in an unstructured and illegal manner by discarding the recommendation of the Federal Commission for Selection of Heads of Public Sector Organizations ("FCHPSO") whereby one Mr. Jamal Shah was proposed as the most suitable candidate for the post of MD PTVC, whereas the respondent No.3 was placed as second on the merit list. Learned counsel added that law does not provide the competent authority with unbridled, unfettered and unstructured powers while exercising its discretion for appointment of the Managing Director, PTVC. He stated that appointing authorities could not be allowed to exercise their discretion at their own whims, or in an arbitrary manner, rather, they are bound to act fairly, evenly and justly, and any violation of such principles is judicially reviewable. Furthermore, in order to exercise fair and transparent discretion, their actions must be based on an objective, open and impartial consideration to decide such matters and the objective of good governance can only be achieved by exercising discretionary powers reasonably. Learned counsel went on to add that by virtue of Articles 4 and 5(2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide issues after application of mind, with reasons.
5. The learned counsel contended that the respondent No.3 has a clear conflict of interest in, on the one hand, being appointed as MD PTVC, and, on the other hand, owning production houses namely, Media Magic. (Pvt.) Ltd., a private limited company, of which he is an 80% shareholder and Messrs Pink Productions, a proprietorship that is proxy managed/run, by his wife, Aneela Malick. It was averred that conflict of interest arises when public officials have to make decisions at work that may affect their private interests and governments are expected to ensure that public officials do not allow their private interests and affiliations to compromise official decision-making and public management. He further contended that it is well-settled law that the entire process of recruitment leading to the appointment to a "public office" can be judicially reviewed under Article 199(1)(b)(iii) of the Constitution. The recruitment process must be above-board and the Courts are under an obligation to judicially review the integrity of the selection process of a public office. Finally, learned counsel concluded that the appointment of the respondent No.3 as MD PTVC was also a violation of sections 199 and 203 of the Companies Ordinance, 1984 in so far as (a) the competent authority for the appointment of the Chief Executive/MD of PTVC was the Board of Directors of PTVC, whereas the said appointment was, in fact, been made by the Establishment Division, Cabinet Secretariat; and (b) the respondent No.3, as MD PTVC, was precluded from engaging in businesses that were of the same nature and directly competed with PTVC. Learned counsel for the petitioner placed reliance on case-law reported as PLD 2013 SC 195, Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others, PLD 2013 Lahore 386, Tanvir Ahmed Khan v. Registrar Lahore High Court, Lahore, PLD 1990 SC 1092, Amanullah Khan v. Federal Government of Pakistan, 2010 SCMR 1301, Tariq Aziz-ud-Din's case, 2012 PTD 1522, PLD 2013 Lahore 343, Barrister Sardar v. FOP, PLD 2012 SC 132, Muhammad Yasin v. FOP, 2010 PLC (C.S.) 967, Sheikh Zahid Hospital through Chairman v. Dean and another v. Dr. Muhammad Saeed and others, PLD 2012 SC 132, Muhammad Yasin v. FOP (Tauqeer Sadiq case) and 2013 SCMR 1159, Ashraf Tiwana v. FOP (Chairman SECP case).
6. On the other hand, the respondents Nos.1 to 4 filed their reply and para-wise comments and raised certain preliminary objections to the maintainability of this Writ Petition i.e. (i) firstly, that the Writ Petition is not maintainable as the petitioner has an alternate efficacious remedy available to him i.e. in the form of filing a complaint before the FCHPSO, constituted in compliance of the orders of the Hon'ble Supreme Court of Pakistan in the Khawaja Asif's case reported as 2013 SCMR 1205; (ii) secondly, that since the petitioner himself chose to participate in the pre-qualification process supervised by Messrs A.F Ferguson, therefore, he is stopped by his conduct to challenge the validity of that selection process; (iii) thirdly, that the petitioner has approached this Court with unclean hands and mala fide intentions, hence, is not entitled to discretionary relief; and (iv) finally, that the Writ Petition has been belatedly filed with a delay of ten (10) weeks and, therefore, suffers from laches.
7. On merits, the learned counsel for the respondent No.3, Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, contended that so far as the lowering of educational qualification, and changing of other terms and conditions through the Corrigendum are concerned, the same was done with a view to allowing a larger number of candidates to apply for the said post and to recruit the best talent. Therefore, it is wrong to say that same was done to accommodate a single individual and/or was person-specific. Learned counsel argued that the entire process of selection of MD, PTVC was totally transparent and competitive and the respondent No.3 was appointed through a open-merit selection process, which involved a pre-screening stage by a renowned HR Consultancy Firm, namely, Messrs A.F. Ferguson, followed by short-listing of five (5) names, out of which two short-listed names were forwarded by the FCHPSO to the Prime Minister, who then made his final choice. It was also averred that the respondent No.3 was never a defaulter of PTVC, instead, the correct position is that the two entities associated with the respondent No.3 (Media Magic (Pvt.) Ltd., and Messrs Pink Productions) had long-standing disputes with PTVC who approached the PTVC independently for the resolution of their disputes. The sums payable were reconciled by mutual agreement on 8-10-2013 and the undisputed liability of Rs.7.236 million was communicated vide letter dated 21-10-2013 and accepted in full by Messrs Pink Productions, prior to any consideration of the respondent No.3 for the post of MD, PTVC. This liability was paid off in full prior to the appointment of respondent No.3 as MD, PTVC. Furthermore, the audit certificate from a statutory auditor (i.e. Auditor-General of Pakistan) is not a mandatory requirement, instead, a clearance certificate was issued by PTVC itself.
8. The learned counsel for the respondent No.3 further contended that, pursuant to the order dated 8-5-2013 of this Court in W.P.1872 of 2013, a five-member Selection Board was constituted to consider the working directors of PTVC for the post of MD, PTVC. The said Selection Board was chaired by the Federal Minister for Information, Broadcasting and National Heritage and the other members thereof were the Secretary and Additional Secretary of the Ministry for Information, Broadcasting and National Heritage, along with Additional Secretary II, Establishment Division and the Director-General - IP of Ministry of Information, Broadcasting and National Heritage. The Selection Board interviewed all those working directors of PTVC who wanted to be considered for the post of MD, PTVC. The petitioner also applied to the Selection Board and was interviewed along with the other working directors. That the unanimous conclusion of the Selection Board was that none of the working directors were found suitable for promotion/ appointment to the post of MD, PTVC. Hence, after exhausting this step, the next step was initiated i.e. a fresh advertisement for the post of MD, PTVC, was published on 9th October 2013, inviting all qualified members from the general public to apply for the said post. The petitioner also applied for the same, pursuant to the said advertisement, however, he was not considered suitable by Messrs A.F. Ferguson and, therefore, not short-listed. It was, further vehemently asserted that the petitioner has approached this Court with unclean hands as he was given acting charge as MD, PTVC through judgment dated 12-4-2013 passed by this Court in Writ Petition No.2503 of 2009 on the basis that he was the senior most of the working directors of PTVC, but in fact he was not the senior-most director at that time. Rather, he was the third senior most director of PTVC, but he did not bring this fact to the notice of this Court, despite knowing well his actual position and seniority. As a result, he illegally occupied the post of acting MD, PTVC, till his relinquishment of charge on 13-1-2014. That the petitioner's aim in initiating these proceedings was to, once again, illegally occupy the post of MD, PTVC.
9. The next contention of the learned counsel for the respondent No.3 was that Mr. Muhammad Malick was appointed MD, PTVC, on 27-2-2014, whereas the present writ petition was filed on 5-5-2014 i.e. after ten (10) weeks of the appointment of respondent No.3, which seems to be an afterthought and a counterblast to blackmail the respondent No.3 and to stop him from taking action against the petitioner for his acts of corruption committed during his tenure as acting MD, PTVC. He informed this Court that the petitioner's case has been recommended to the National Accountability Bureau (NAB) for investigation on account of his alleged corruption during service. Lastly, he argued that when there is material on record to show that a writ petition, styled as a public interest litigation, is nothing but a camouflage to foster personal disputes or vendetta to bring to terms a person, not of one's liking, or gain publicity or a facade for blackmail, such petition is liable to be thrown out for lack of bona fides. At the end of arguments learned counsel submitted that, disqualification, if any attached to respondent No.3 was shedded away before entering to the officer, therefore, this aspect has to be kept out of consideration at the time of issuance of writ. Reliance was placed on case-law reported as: AIR 1976 SC 2428 titled Dr. G. Seirana v. University of Lucknow and others 2001 MLD 431, Mirza Nasir and others v. Mirza Hakim ud Din, 2007 SCMR 569, Overseas Pakistani Foundation and others v. Sq. Ldr. (Retd.) Syed Mukhtar Ali Shah and others, PLD 1966 Karachi 31, Ch. Rehmat Ali and others v. Custodian, Evacuee Property Lahore and others, PLD 2013 SC 413, Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others, PLD 1969 SC 42, Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others, PLD 1965 SC 236, Aziz-ur-Rehman Choudhary v. M. Nasir-ud-Din etc. 2004 SCMR 1299, Dr. Azim-ur-Rehman Khan MEO v. Government of Sindh and another, 2012 SCMR 455, Dr. Akhtar Hassan and others v. Federation of Pakistan, (2005) 5 SCC 136, Gurpal Singh v. State of Punjab and others (2004) 3 SCC 363, Dr. B. Singh v. Union of India and others, (2005) 1 SCC 590, Dattaraj Nathuji Thaware v. State of Maharashtra and others.
10. The Secretary Information (respondent No.2) appointed his private counsel, namely Mr. Feisal Hussain Naqvi, ASC, which is against the settled norms and practice, as in the presence of the learned Additional Attorney-General, Deputy Attorney-General and Standing Counsel, the Secretary Information (respondent No.2) was not obliged to engage the services of some private counsel and this fact was pointed out during the case proceedings. Learned counsel so engaged submitted that since his power of attorney is on the…
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