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Official Citation: 2023 MLD 1273
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2025
Decision Date: 2025-01-15
Parties: Dr. Nasir Mehmood Cheema and another vs Federation of Pakistan through Ministry of National Food Security and Research and others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2025-01-15, officially reported as 2023 MLD 1273. In this matter between Dr. Nasir Mehmood Cheema and another and Federation of Pakistan through Ministry of National Food Security and Research and 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.
Case cited as 2023 MLD 1273
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Dr. Nasir Mehmood Cheema and another vs Federation of Pakistan
through Ministry of National Food Security and Research and others Case No.: writ Petition No. 2240 of 2024 Date of Judgment:2025-01-15 Reported As: 2025 IHC 2, PLJ 2025 Islamabad 183 Result: Petition Allowed Judgment
JUDGEMENT BABAR SATTAR, J.- The petitioners have impugned the appointment of respondent No.6 as Chairman Pakistan Agriculture Research Council ("PARC") for having been appointed in breach of provisions of the Management Position Scales Policy, 2020 ("MP Scales Policy") dated 22.06.2020, while seeking a declaration in the alternative that the appointment of respondent No.6 by notification dated 28.06.2022 was valid for a period of two years, as prescribed in Advertisement dated 18.01.2022, inviting applications for the post of Chairman PARC. 2. Learned counsel for the petitioners submitted that Chairman PARC is appointed under Section 9 of the Pakistan Agricultural Research Council Ordinance, 1981 ("PARC Ordinance"). Section 9(2) of the PARC Ordinance vests in the President the authority to determine the terms and conditions of service for the Chairman of PARC. Section 9(3) of the PARC Ordinance provides that the Chairman will serve during the pleasure of the President. He submitted that an advertisement was issued on 18.01.2022 ("Advertisement"), which stated that Chairman PARC is to be appointed on contract in MP-I scale. The Advertisement, however, also independently provided that the tenure of such appointment would be two years. He submitted that for purposes of selection a Scrutiny Committee was constituted that recommended shortlisted candidates to the Selection Committee. The Selection Committee then selected a panel of three individuals for purposes of such appointment and referred their names to the Establishment Division. The minutes of meeting of the Selection Committee mentioned that the tenure of appointment was two years, which was in consonance with the Advertisement. He submitted that neither the composition of the Scrutiny
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Committee nor that of the Selection Committee was that as prescribed in the MP Scales Policy, issued through Office Memorandum ("2020 O.M") dated 22.06.2020. He submitted that the Selection Committee as prescribed under Schedule-I of the MP Scales Policy comprises five individuals as opposed to three in the instant case. Consequently, both the number and the composition for the Selection Committee that recommended the name of respondent No.6 was different from that which is prescribed in the MP Scales Policy. He submitted that the summary, as approved by the Prime Minister, only referred one name for the consideration of the President, which is not in accordance with the requirements of Section 9 of the PARC Ordinance. The entire panel ought to have been referred to the President, as the President acts as persona designata and has discretion as to who is to be appointed for purposes of Section 9 of the PARC Ordinance. The President, however, approved the summary and appointed respondent No.6. The notification of appointment, however, stated that respondent No.6 would serve as Chairman PARC till further orders. He submitted that subsequent to the appointment of respondent No.6 the Establishment Division required the initiation of another summary to settle the terms and conditions of service of respondent No.6 as well as his tenure, even though the terms and conditions as provided for in the Advertisement referred to MP-I Scale for purposes of salary etc. and the tenure was clearly specified as two years. A summary was then generated, stating that the tenure of office of respondent No.6 would be three years. This summary was approved by the Prime Minister and also by the President, which had the effect of transforming the two-year appointment as advertised to a three-year appointment. He submitted that the MP Scales Policy dated 22.06.2020 has been prescribed by the Prime Minister as a policy measure and has not been approved by the Federal Cabinet and cannot be treated as a policy of the Federal Government in view of the law laid down by the Supreme Court in M/s Mustafa Impex, Karachi and others vs. The Government of Pakistan through Secretary Finance, Islamabad and others (2016 PTD 2269). He further submitted that in view of the law laid down by this Court in Muhammad Shafeeq vs. Federation of Pakistan, through Secretary, Ministry of Petroleum and Natural Resources and 5 others (2023 PLC(C.S.) 205) and the Lahore High Court in Usmat Batool vs. Bahauddin Zakariya University, Multan, through Registrar and 5 others (2013 PLC(C.S.) 484), the tenure as provided in an Advertisement inviting applications of interested candidates takes priority over any other policy documents and the advertised tenure of office cannot be subsequently enhanced as that constitutes lack of transparency and a fraud on the other candidates who are interested in the said position. 3. The learned Additional Attorney General relied on the comments filed by respondents No.1 to 4, wherein it was acknowledged that the Advertisement soliciting applications for the post of Chairman PARC stipulated a contract period of two years. He submitted that the selection procedure prescribed in the MP Scales Policy was not followed in the instant case. He submitted that the selection procedure prescribed for Chief Executives in Key Public Sector Enterprises through O.M. dated 28.03.2019 ("2019 O.M.") was followed. He submitted that in Annex-I to the 2019 O.M., the appointment for the Chief Executive of PARC was also included within the realm of the said O.M. Consequently, the Selection Committee constituted for appointment of respondent No.6 was in accordance with the 2019 O.M. and not the MP Scales Policy. The learned Additional Attorney General took the Court through the selection process, in which a Scrutiny Committee scrutinized the applications, then a Selection Committee was constituted, the composition of which was not the same as that of a Selection Committee required to be constituted under the MP Scales Policy. The Selection Committee selected a panel of three individuals and recommended that one of them be appointed for a period of two years. The Ministry of National Food Security also recommended the appointment of Chairman PARC for a period of two years. The Establishment Division endorsed the summary and recommended that the appointment of Chairman PARC shall
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be for a period of two years. The summary, as approved by the Prime Minister, did not include any statement regarding the tenure for the Chairman. Consequently, the Establishment Division by O.M dated 02.08.2022 advised the Ministry of National Food Security to initiate a separate summary to settle the terms and conditions of Chairman PARC as well as the tenure of his appointment. Consequent to this advice, a summary dated 25.11.2022 was initiated stating that the post of Chairman PARC was advertised as an MP-1 scale post and that a summary be approved stating that the terms and conditions as provided in the MP Scales Policy be made applicable to the appointment of respondent No.6. In its comments dated 13.12.2022, the Finance Division noted that as respondent No.6 had already been appointed and thus the Finance Division had no objection to him being granted the terms and conditions applicable to MP-1 scale. Consequently, the Prime Minister recommended and the President approved the summary that respondent No.6 be granted the terms and conditions as prescribed in the MP Scales Policy. He submitted that a second notification was issued on 15.03.2024 clarifying that as the terms and conditions afforded to respondent No. 6 were those of MP Scale Policy, the tenure of his appointment would be deemed to be three years in terms of Para 5(3) of the MP Scales Policy. 4. The learned counsel for respondent No.6 objected to the maintainability of the petition stating that respondent No.1 was himself an interested party in the appointment as Chairman PARC. Consequently, the petition was mala fide and the petitioners as relators did not satisfy the requirements of filing a petition of quo warranto. He submitted that the writ of quo warranto was a discretionary remedy that was not to be issued as a matter of course. He further submitted that determination of the qualification of a public sector employee fell within the domain of the executive and where the person was found to be duly qualified through a competent selection process, the appointment ought not be declared illegal by the Court. He submitted that the question of tenure of respondent No. 6 was a policy issue, which had been determined by the President on the advice of the Prime Minister in terms of Section 9 of the PARC Ordinance and such policy determination was not amenable to judicial review. He also contended that in making an appointment under Section 9 of the PARC Ordinance, the President acted as persona designata and could determine the tenure of appointment in his own discretion. He submitted that the pleasure doctrine had been endorsed by this Court in Senator Taj Haider vs. Government of Pakistan (2018 CLC 1910). He submitted that while the qualifications prescribed in an advertisement were sacrosanct, the tenure prescribed could be changed even after the appointment at the discretion of executive authorities. 5. In rebuttal, the learned counsel for the petitioners submitted that the initial summary had clearly mentioned that the appointment was to be for a period of two years. The second summary seeking clarification of tenure in itself reflects that the appointing authority breached the terms of the Advertisement and the basis on which applications to fill the post of Chairman PARC were solicited. He also reiterated that the Federal Government had admitted that the MP Scales Policy had not been followed in the manner in which the selection process was carried out, as the Selection Committee put together for selection of respondent No.6 was not comprised in accordance with requirements of the MP Scales Policy. The Federal Government could therefore not change the tenure of appointment once the appointment of respondent No.6 had taken effect, as that would amount to changing the terms of the Advertisement after respondent No.6 had been selected and appointed. 6. The learned Additional Attorney General in response to the submissions of respondent No.6 stated that the President, for purposes of making appointment under Section 9 of the PARC Ordinance, was not persona designate, and was obliged to make an appointment on the advice of the Prime Minister as required under Article 48 of the Constitution.
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7. Let us consider the relevant facts in the instant matter before we focus on the questions of law involved. The Ministry of National Food Security issued an Advertisement dated 18.01.2022 stating that the tenure of the appointment of Chairman PARC will be for a period of two years on contract basis. The name of the post was stated as "Chairman PARC (MP-1)". The Federation through C.M. No.3603 of 2024 has placed on record the back-and-forth correspondence between the Ministry of National Food Security and the Establishment Division with regard to the content of the draft advertisement. In O.M. dated 02.06.2021 the Establishment Division highlighted that it was unclear whether the post of Chairman PARC was a sanctioned post of MP-1 or whether the post was benchmarked against MP scales, while referring to the draft advertisement, which at the time stated that the tenure of the post was three years. The Ministry of National Food Security by O.M. dated 18.06.2021 clarified that the appointments of previous Chairman had been made in MP-1 scale during the years 2008, 2012, 2016 and 2019. The correspondence reflects that after back-and- forth between the Ministry of National Food Security and the Establishment Division, the draft advertisement was amended and in view of such correspondence the tenure of the post was mentioned as two years in the Advertisement (instead of three, as included in a previous version of the draft advertisement). The petitioner has also placed on record various notifications where the tenure of an appointment is two years while the other terms and conditions of service including the pay package etc. have been benchmarked against MP scales. The petitioner has relied on notification dated 20.10.2021, in which Establishment Division notified the appointment of a Technical Advisor in MP-1 scale in the Ministry of National Food Security for a period of two years while affording such person the other terms and conditions laid down in the MP Scales Policy. 8. It emerges from the above that there are advertisements that merely reflect that the post is a sanctioned MP scale post and all terms and conditions mentioned in the MP Scales Policy are made applicable to such post. There are other posts, which are not sanctioned MP scale posts, and where the relevant division of the Federal Government advertises the tenure of the post, which may or may not be that prescribed in the MP Scales Policy. But instead of specifying the remaining terms and conditions of service, such as pay and perks etc., it incorporates the terms and conditions, including pay and perks, as prescribed under the MP Scales Policy. This is understood as benchmarking pay and parks to be afforded to the person appointed against the remuneration provided in the MP Scales Policy. In the instant matter, the Ministry of National Food Security issued an Advertisement that stated unambiguously that the tenure of appointment would be two years. The name of the post was identified as Chairman PARC, and with reference to pay scale it was mentioned that the pay scale would be MP-1. The Advertisement therefore clearly provided that the tenure for the appointment as Chairman PARC would be two years, while the pay scale to be afforded to such appointee would be as prescribed for the position of MP-1 under the MP Scales Policy. 9. It was pursuant to the above understanding (as also reflected in the aforementioned communication between the Ministry of National Food Security and the Establishment Division) that the Scrutiny Committee and the Selection Committee for purposes of selection of Chairman PARC was constituted in accordance with the 2019 O.M. as opposed to the requirements of the MP Scales Policy. It is not contested that the Selection Committee that shortlisted three candidates for the post of Chairman PARC was not a Selection Committee comprised in accordance with requirements of the MP Scales Policy. The Selection Committee put together a shortlist including respondent No.6 and recommended that one of them be appointed "on contract basis for a period of two years". The Ministry of National Food Security prepared a summary dated 01.07.2022. It stated in Para 2 that applications had been invited for the appointment of Chairman PARC on MP-1 scale on contract basis for two years and recommended that one of the three individuals shortlisted by the Selection Committee be appointed. The Establishment Division in its comments included in the
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summary also recommended that Chairman PARC be appointed for a period of two years. The Prime Minister then recommended the appointment of respondent No.6 in terms of Section 9 of the PARC Ordinance to the President without specifying a certain tenure in the paragraph of the summary the approval of which was solicited. The said summary was approved by the President and consequently notification dated 28.07.2022 was issued appointing respondent No.6 as Chairman PARC "with immediate effect and until further orders". 10. On 02.08.2022, the Establishment Division advised Ministry of National Food Security to initiate a separate summary for the Prime Minister to settle the terms and conditions and the tenure of appointment of respondent No.6 as Chairman PARC. In summary dated 25.11.2022, the Ministry of National Food Security stated that as the post of Chairman PARC was advertised as MP-1 scale post, the terms and conditions provided in the MP Scales Policy shall apply to the appointment of respondent No.6. In response to this summary, in relation to pay package and emoluments, the comments from the Finance Division were solicited, which stated that as respondent No.6 had already been appointed it had no objection to respondent No.6 being afforded the terms and conditions provided for MP-1 scale in the MP Scales Policy. The summary was then routed through the Prime Minister's office to the President who approved the same on 26.12.2022. 11. On 13.02.2024, the Secretary PARC initiated correspondence with the Ministry of National Food Security stating that the tenure of appointment of respondent No.6, as Chairman PARC, had not been defined in the notification of his appointment. But the terms and conditions afforded to him were subsequently approved by the President as those equivalent to MP-1 scale. As the MP Scales Policy laid down that the initial appointment of MP-1 scale position was three years, which was extendable by another two years, the tenure of appointment of respondent No.6 be clarified as that provided in MP Scales Policy. The Establishment Division by O.M. dated 15.03.2024 stated that as terms and conditions of MP Scales Policy have been adopted for the post of Chairman PARC, the tenure of his appointment would be three years. The Ministry of National Food Security by letter dated 27.03.2024 then clarified that the tenure of the appointment of respondent No.6 would be deemed as three years in terms of Para 5(3) of the MP Scales Policy. 12. The questions that arise for adjudication of the instant petition are two-fold. One, whether respondent No.6 was appointed pursuant to requirements of MP Scales Policy against a sanctioned MP-I scale post. And two, can a person be appointed for a tenure of two years, as prescribed in the Advertisement, for a post while affording such appointee other terms and conditions such as pay and perks benchmarked against an MP scale post. 13. Let us first address the objections to the maintainability of the petition. It was submitted by the learned counsel for respondent No.6 that respondent No.6 was appointed by the President in terms of Section 9 of the PARC Ordinance in his discretion and while doing so the President approved the terms and conditions of service of respondent No.6, including his tenure, as that being three years. Section 9 provides that the Chairman PARC was to be appointed by the President in his discretion, in which capacity the President was not bound by the advice of the Prime Minister with regard to the tenure as he acted persona designata. He further submitted that where a statute provided that the President was to make an executive appointment, the President, while making such appointment in terms of the powers conferred upon him by statute, was not bound by requirements of Article 48 of the Constitution. 14. While making such submissions he relied on the judgment of this Court in Senator Taj Haider. This Court is not impressed with the argument that while making an appointment in terms of Section 9 of the PARC Ordinance, the President acts in his discretion as persona designata while not being bound by any advice of the Prime Minister or the Federal Government. This Court in Senator Taj Haider was interpreting provisions of the State Bank of Pakistan Act, 1956 ("SBP Act").
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While not second-guessing the observations made therein, this Court will only observe that in the said judgment the Court took into account that the SBP Act was amended through an Ordinance to transfer the power of appointment from the Federal Government to the President, which was one of the key reasons leading the Court to the conclusion that the legislature intended for the President to make the appointment and not the Federal Government. The law on when it can be deemed that the President acts as persona designata was clarified by this Court in Mushtaq Ahmed Sukhera vs. The President (PLD 2020 Islamabad 1). It was held that the exercise of powers under Section 3(1) of the Office of Federal Tax Ombudsman Ordinance, 2000, was an administrative function and did not involve exercising adjudicatory or quasi-judicial powers and in doing so the President had a constitutional duty to act on the advice of the Prime Minister. While doing so the Court relied on and enumerated the law laid down by the Supreme Court in University of the Punjab vs. Ch. Sardar Ali (1992 SCMR 1093), Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189) and Dr. Zahid Javed vs. Dr. Tahir Riaz Chaudhry (PLD 2016 SC 637). The same question came before this Court once again in Professor Dr. Muhammad Naeem Khan vs. Federation of Pakistan (2023 MLD 1273) where the applicable test for when the President exercises powers as persona designata was treated as follows: "11. As explained above, the concept of persona designata has been adopted and reiterated by the august Supreme Court. The question of whether the legislature is competent to vest duties, functions and powers in a Constitutional functionary such as President or Governor in his capacity as persona designata, such that in exercise of such powers, duties and functions, the President or the Governor is not bound by the requirement of the section 48(1) and section 105(1) of the Act, respectively, stands settled. The test laid down by the august Supreme Court in Dr. Zahid Javed provides that there are two instances in which the President or Governor would not be bound by the advice of the Prime Minister or the Chief Minister, as the case may be. One, where powers, duties and functions are vested by the legislature in an office by promulgation of a statute, which statute further provides that such powers, duties and functions are to be discharged by the President or the Governor as an incidental matter. In other words, if the statutory intent is that the powers, duties and functions are of an office independent of the office of the President or the Governor, and the President or the Governor has been designated as a person who will exercise such powers, functions and duties, the President or Governor exercises such powers as persona designata and is not bound by the provisions of the Constitution. Two, even where a statute vests power in the President or the Governor as persona designata, and further provides that as a general matter such power is to be exercised on the advice of the Prime Minister or the Chief Minister, the President or the Governor would not be bound by such advice in discharge of any particular power or function that is quasi-judicial in nature." 15. In view of the provisions of the PARC Ordinance, no legislative intent can be deciphered that the President was vested with the power to make an executive appointment independent of the advice of the Prime Minister and/or the Federal Government. The President is discharging a purely executive function as opposed to a quasi-judicial function, and in doing so the President is bound by the advice of the Prime Minister, as it is only by virtue of the President being the President that he/she has been conferred with the power to make an appointment in terms of Section 9 of the PARC Ordinance. Consequently, in making such appointment the President must act in accordance with requirements of Article 48 of the Constitution. 16. Even otherwise, nothing turns on the question of whether or not the President acts as persona designate while exercising powers under Section 9 of the PARC Ordinance. It is not that the President did not abide by the advice rendered by the Prime Minister. Thus, whether or not the President acts as persona designate does not impinge upon the controversy before this Court. In terms of the summary approved by the President dated on 27.07.2022 as well as the summary
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approved by the President on 22.12.2022, the President approved the advice rendered by the Prime Minister. Even if this court were to come to a contrary conclusion that the President was acting as persona designate, the manner in which he exercised discretion could be judicially reviewed if the action was illegal, irrational or procedurally improper. 17. The next objection to maintainability raised by the learned counsel for respondent No. 6 was that the petition was not bona fide and had been filed for some collateral purpose. It was also submitted that it suffered from laches. And even otherwise, this Court ought not exercise judicial review powers to second-guess policy choices made by the Federal Government and/or by the President. 18. Let us revisit the principles laid down by superior courts in relation to writs of quo warranto. It is now settled that…
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