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Petitioner: Mirza ABDUL REHMAN VS Respondent: FEDERATION OF PAKISTAN
2017 P L C (C.S.) 1327 [Islamabad High Court] Before Athar Minallah, J Mirza ABDUL REHMAN Versus FEDERATION OF PAKISTAN and others W.P. No.1021 of 2015, decided on 14th April, 2017. (a) Drug Regulatory Authority of Pakistan Act (XXI of 2012)--- ----Ss. 5 & 8---Constitution of Pakistan, Art.199---Quo warranto, writ of---Maintainability---Civil service---Drug Regulatory Authority of Pakistan---Chief Executive Officer---Appointment of---Requirements---Expression 'financial' or `professional' interest---De facto, doctrine of---Scope---Contention of petitioner was that appointment of respondent was made in violation of prescribed eligibility criteria provided under Drug Regulatory Authority of Pakistan Act, 2012---Validity---Eligibility criterion and conditions had nexus with the date when a person was selected and subsequently appointed pursuant to completion of the selection process---Word 'appoint' had been used in S.5 of Drug Regulatory Authority of Pakistan Act, 2012 and said expression could not be used as 'to be appointed'---Condition for the purpose of eligibility with regard to age limit prescribed under S.5 of Drug Regulatory Authority of Pakistan Act, 2012 was relevant and would be attracted on the date when notification of appointment was issued---Person so appointed must not be less than 45 years of age or more than 56 years---Age of respondent, in the present case, on the date of appointment i.e. issuance of notification, was more than 56 years---No provision existed in Drug Regulatory Authority of Pakistan Act, 2012 which empowered the appointing authority to grant relaxation in the prescribed age limit nor age restriction had been relaxed---Appointment made in violation of mandatory prescribed age would be void---Expression 'financial' or 'professional' interest used in S.18 of Drug Regulatory Authority of Pakistan Act, 2012 were preceded by the word `any'---Expression 'any' was used to indicate something that was not particular or specific---Quantity, amount or quantum of interest was not relevant to trigger the disqualification provided under S.18 of Drug Regulatory Authority of Pakistan Act, 2012---Financial or professional interest as a disqualification was attracted at the time of determining the eligibility of a person---Person having any financial or professional conflict of interest was not eligible to be considered for appointment as Chief Executive Officer of Drug Regulatory Authority of Pakistan---Single share in an entity at the time of determination of eligibility would be sufficient to render a person as being disqualified for being considered---Legislature by prescribing financial or professional conflict of interest as a disqualification had acknowledged the fiduciary status of Chief Executive Officer for the purposes of Drug Regulatory Authority of Pakistan Act, 2012---Respondent was Director of a Pharmaceutical Company and also a shareholder of the said company at the time when he applied in response to the advertisement published in the newspapers---Company of which respondent was Director and owned shares was amenable for its activities and business to the regulatory framework provided under Drug Regulatory Authority of Pakistan Act, 2012---Respondent was not eligible to be considered during the selection process with regard to appointment as Chief Executive Officer of Drug Regulatory Authority as he had financial conflict of interest---Appointment of respondent was in violation of Ss.15 & 18 of Drug Regulatory Authority of Pakistan Act, 2012---Disposing of shares later was inconsequential---Technicalities or minor irregularities would not render an appointment to a public office as invalid---Respondent was not eligible to be appointed as Chief Executive Officer of the Drug Regulatory Authority of Pakistan---Impugned notification was illegal, void and without lawful effect which was set aside---Acts done or orders passed by the respondent till rendering of present judgment would be protected under the de facto doctrine---Government was directed by the High Court to initiate process for selection of Chief Executive Officer of Drug Regulatory Authority of Pakistan---Constitutional petition was allowed accordingly. Muhammad Yasin v. Federation of Pakistan, through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref. Mehram Ali and others v. FOP and others PLD 1998 SC 1445; Malik Asad Ali and others v. FOP, through Secretary Law and Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Manzoor Hussain v. The State PLD 1998 Lah. 239; Abdus Sattar v. The State PLD 1997 Lah. 683 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel. (b) Constitution of Pakistan--- ----Art. 199---Writ of quo warranto---Preconditions to be fulfilled for issuance of writ of quo-warranto enumerated. Article 199(1)(b)(ii) of the Constitution empowers a High Court to issue a writ in the nature of quo warranto on an application by any person. The High Court may require a person on such an application, within the territorial jurisdiction of High Court, holding or purporting to hold a public office, to show under what authority of law he claims to hold that office. The pre-conditions for the issuance of a writ of quo warranto are, firstly, making of an application by 'any' person who need not be aggrieved, secondly, the person against whom a writ is being sought must be within the territorial jurisdiction of the High Court before which the petition has been filed, thirdly, the application must be in respect of a person holding or purporting to hold a public office and, lastly, the petition is in respect of requiring such a person to show that under what authority of law he claims to hold that office. A writ in the nature of quo warranto, therefore, would be issued if the above conditions are fulfilled. Territorial jurisdiction and holding or purporting to hold a public office are the two most important conditions to be satisfied. The expression public office has not been defined in the Constitution. Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bai and 10 others PLD 1975 SC 244; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; N.-W.F.P. Public Service Commission through Chairman and another v. Dr. Samiullah Khan and 2 others 1999 SCMR 2786; Hafiz Hamdullah v. Saif Ullah Khan and others PLD 2007 SC 52; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Capt. (R) Muhamamd Naseem Hijazi v. Province of Punjab through Secretary Housing and Physical Planning and 2 others 2000 PLC (C.S.) 1310; Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763; Muhammad Rafiq and 2 others v. Muhammad Pervaiz and others 2007 PLC (C.S.) 853; Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others v. General Pervaiz Musharraf, Chief Executive and others PLD 2002 SC 853 and Malik Nawab Sher v. Ch. Muneer Ahmed and others 2013 SCMR 1035 rel. (c) Constitution of Pakistan-- ----Art. 199---Writ of quo warranto---Holding of a "public office" by a person---Determination---Test---Jurisdiction of High Court---Nature and scope. The object of a writ in the nature of quo warranto is to determine whether a person is holding a 'public office' legally. The test for determination was to ascertain whether or not the person against whom a writ has been sought holds a 'public office'. It is not necessary for the petitioner to show that he/she is an 'aggrieved person'. The bona fides of the petitioner may be relevant but not a determinant factor for the purposes of exercising discretion under Article 199(1)(b)(ii) of the Constitution. The jurisdiction vested in a High Court in respect of a writ of quo warranto is inquisitorial in nature. The High Court has to consider whether the person who holds a public office fulfils the necessary qualifications prescribed under the relevant law and that the legal provisions relating to appointment have not been violated. The jurisdiction vested in the High Court being discretionary in nature may, therefore, be exercised in an appropriate case despite being satisfied that the person who has brought the matter may be having a personal interest, or his bona fides may appear to be suspect. Technicalities or minor irregularities would not render an appointment to a public office as invalid. (d) Drug Regulatory Authority of Pakistan Act (XXI of 2012)--- ----S. 8---'Conflict of interest'---Connotation. Black's Law Dictionary Eighth Edition and Conflict of Interest in the Professions Edited by Michael David and Andrew Stark (New York; Oxford University Press, 2001 rel. (e) Words and phrases---- ----'Any'---Meaning and scope. Khawaja Muhammad Farooqui and Ali Nawaz Kharal for Petitioner. Adnan Saboor Rohaila and Afnan Karim Kundi, Addl. Attorney General for Respondents. Date of hearing: 31st January, 2017. JUDGMENT ATHAR MINALLAH, J.--- Through this consolidated judgment I shall decide the instant petition as well as W.P. No.3637 of 2016, re: "Ch. Muhammad Usman v. Muhammad Aslam Afghani, etc." as common questions of law and facts are involved in these two petitions. 2. The facts, in brief, are that the petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") requiring the respondent No.4, Dr. Muhammad Aslam Afghani, who is the Chief Executive Officer of the Drug Regulatory Authority of Pakistan, to show under what authority of law he claims to hold his office. The latter was appointed as the Chief Executive Officer, Drug Regulatory Authority Pakistan (hereinafter referred to as the "Authority") on 30-01-2015 under section 5 of the Drug Regulatory Authority of Pakistan Act, 2012 (hereinafter referred to as the "Act of 2012"). The eligibility criteria and qualifications prescribed for appointment of the Chief Executive Officer are described in clause (a) of subsection (1) of section 5 of the Act of 2012 read with section 18 ibid. 3. The learned counsel appearing on behalf of the petitioners have contended that; the appointment of the respondent No. 4 was made in violation of the prescribed eligibility criteria provided under the Act of 2012; the respondent No. 4 was more than 56 years of age on the date of his appointment; the respondent No. 4 at the time of his appointment was a Director of a pharmaceutical company namely, M/s Otsuka Pakistan and was also holding the post of Senior Director Plan Operations; it is an admitted position that the respondent No.4 was a share holder of the said pharmaceutical company; the process of appointment was in violation of the principles and law laid down by the august Supreme Court in the judgment rendered in case of "Muhammad Yasin v. Federation of Pakistan, through Secretary, Establishment Division, Islamabad and others" [PLD 2012 SC 132]. 4. The learned counsel appearing on behalf of the respondent No. 4 has argued that; the latter has been appointed in accordance with law, particularly the provisions of the Act of 2012; the petitioners have vested interests and, therefore, the petitions are liable to be dismissed on this sole ground; the petitioners have not approached this Court with clean hands; proceedings were initiated against the petitioners and with the intent to thwart the same they have filed the petitions; the petitioners had responded to the advertisement dated 10-10-2013 whereby the Federal Government had invited eligible applicants to apply and compete for the post of the Chief Executive Officer; the Federal Government constituted a Commission and a leading Chartered Accountant was appointed as Human Resource Consultant; five names were short listed including that of the respondent No.4; the Federal Government finalized its recommendations pursuant to directions given by the august Supreme Court; the respondent No.4 was appointed through a transparent process; the respondent No.4 was eligible to apply on the date when the applications were invited; section 5 of the Act of 2012 will not be attracted in case of the respondent No.4 since his process had commenced at a time when he was eligible i.e. he was less than 56 years of age; there has been no violation of section 18 of the Act of 2012; the respondent No.4 had disposed of his shares and, therefore, there has been no violation; the respondent No.4 had purchased token shares in the company from the open market so that he may attend the proceedings of the Board of the Company; the shares were donated to the Workers Welfare Fund of the Company. 5. The learned Addl. Attorney General has argued that; the shares held by the respondent No.4 on the date of his appointment were nominal; the latter had cured the defect by disposing of the shares; the shares held by the respondent No.4 in the pharmaceutical company had been declared by him at the time of his appointment. 6. The learned counsel and the learned Addl. Attorney General have been heard and the record perused with their able assistance. 7. It is an admitted position that the respondent No.4 was appointed as the Chief Executive Officer of the Authority on 30-01-2015 under section 5 of the Act of 2012 pursuant to the selection process, which had been initiated by publishing advertisements in various newspapers on 10-10-2013. On the date of his appointment, the respondent No.4 was admittedly more than 56 years of age. It is also not disputed that the respondent No.4 was a Director in a pharmaceutical company namely, M/s Otsuka Pakistan (hereinafter referred to as the "Company") and on the date of his appointment he was one of its share holders. It has been asserted on behalf of the respondent No.4 that the latter had disposed of the shares in his name, after being appointed and taking charge of the office of Chief Executive Officer. The questions which emerge for consideration are, firstly, whether in relation to the age prescribed under section 5 of the Act of 2012, the initiation of the selection process or the date of appointment by way of issuing the notification in this regard would be a relevant event; secondly, whether being one of the Directors of the Board of the Company and holding its shares on the date of appointment would attract the mischief contemplated under section 18 of the Act of 2012 and, if so, then whether the quantum of shares owned would be of relevance and, lastly, whether the violation in the context of section 18 of the Act of 2012 is curable. In order to answer these questions it would be relevant to examine the provisions of the Act of 2012. 8. The Act of 2012 was notified and published in the official gazette on 13-11-2012. The object and purpose of enacting the Act of 2012, as stated in its preamble, is to establish an Authority to provide for the effective coordination and enforcement of the Drugs Act, 1976 (hereinafter referred to as the 'Act of 1976') and to bring harmony in the inter-provincial trade and commerce of the therapeutic goods. Section 2 defines various expressions for the purposes of the Act of 2012. Clause (vii) defines 'CEO' as meaning the Chief Executive Officer of the Authority appointed under section 5 by the Federal Government on the recommendation of the Board constituted under section 9. Clauses (a) to (c) of subsection (1) of section 5 prescribe the eligibility criteria and the conditions in respect of the appointment of a person as the Chief Executive Officer. Section 5(1)(a) explicitly provides that a person would be qualified to be appointed as Chief Executive Officer who has a post graduate degree in Pharmacy and medicine, is aged not less than 45 years or more than 56 years and who has a minimum of twenty years experience in management in the pharmaceutical field or regulatory affairs, etc. Clause (b) of subsection (1) of section 5 prescribes the tenure of appointment as three years, extendable on the recommendations of the Board for another year only. Clause (c) of subsection (1) of section 5 and subsection (2) ibid enumerate the powers and functions of the Chief Executive Officer of the Authority. The Chief Executive Officer is empowered to exercise general control and supervision over the affairs of the Authority and is entrusted to ensure that the provisions of the Act of 1976, the rules and regulations, policies and directions of the Board are executed. Section 7 provides for the powers and functions of the Authority. Section 8 vests the power in the Authority, subject to approval of the Board, to delegate its powers and functions to any of its officers as it may deem appropriate. Section 9 describes the constitution of the Policy Board of which the Chief Executive Officer is one of its Members. Section 18 expressly provides that no person shall be appointed as the Chief Executive Officer, Director, Consultant, Advisor, officer or employee of the Authority if he or she has any financial or professional conflict of interest. 9. It is obvious from a combined reading of the provisions of the Act of 2012 that the powers and functions vested in the Authority are in the nature of giving the latter the status of one of the most important regulator, having a direct nexus with the fundamental rights of the members of the general public. The enforcement of the Act of 1976 is one of the most crucial powers vested and function entrusted to the Authority. The Act of 1976 has been enacted in order to regulate the import, export, manufacture, storage, distribution and sale of the drugs. The provisions of the Act of 2012 read with the Act of 1976, as already noted, unambiguously establishes the status of the Authority as one of the most important regulatory authorities of the State. A plain reading of the Act of 2012 as a whole clearly shows that the Chief Executive Officer has a pivotal role in executing the regulatory framework of the Act of 1976 read with the Act of 2012. Wide powers are vested in a person appointed as the Chief Executive Officer and the same are in the nature of a trust, thus giving rise to obligations and duties which are essentially fiduciary in nature. It is, therefore, in this context that the legislature in its wisdom has, inter alia, prescribed two mandatory pre conditions for the appointment of a person as the Chief Executive Officer of the Authority. The first relates to the restriction regarding age and the same is provided under section 5(1)(a) while the second is described in section 18 i.e. that no person shall be appointed if he or she has any financial or professional conflict of interest. 10. The learned Additional Attorney General and the learned counsel appearing on behalf of the respondent No.4 argued at length in support of their contention that the prescribed restriction regarding age i.e. not less than 45 years or more than 56 years, is relatable to the date on which the process for appointment is initiated i.e. when applications are invited from eligible candidates, rather than the date on which the appointment is actually notified. A plain reading of section 5 shows that the eligibility criterion and conditions have an obvious nexus with the date when a person is selected and subsequently appointed pursuant to completion of the selection process. The legislature has expressly used the word 'appoint' in the controlling part of subsection (1) of section 5 and the said expression cannot be read as 'to be appointed'. The language used by the legislature can by no stretch of the imagination be construed so as to relate the condition of prescribing the age limit to the date on which the process for appointment is initiated. The learned Additional Attorney General and the learned counsel for the respondent No.4 are interpreting section 5 in a manner which would have the effect of reading something not provided therein nor intended by the legislature. It is, therefore, declared that the condition for the purposes of eligibility in respect of the age limit prescribed under section 5 of the Act of 2012 is relevant to and shall be attracted on the date when the Federal Government, on the recommendation of the Board, appoints the Chief Executive Officer i.e. the date on which the formal notification of appointment is issued. It is on this date that the person so appointed must not be less than 45 years or more than 56 years in age. 11. In the instant case it is an admitted position that on the date of appointment i.e. issuance of notification in this regard, the age of the respondent No.4 was more than 56 years. There is no provision in the Act of 2012 which empowers the appointing authority to grant relaxation in the prescribed age limit nor is it the case of the respondents that the age restriction had been relaxed. A person, therefore, cannot be appointment as a Chief Executive Officer of the Authority if his or her age on the date of issuance of the notification is either less than forty five or more than fifty six years. As a corollary, an appointment made in violation of the mandatory prescribed age would be void. 12. The learned Additional Attorney General and the learned counsel for the respondent No.4 have strenuously argued that the expression 'conflict of interest' used in subsection (1) of section 18 of the Act of 2012 is to be interpreted in such a manner that the quantum or amount of interest involved becomes relevant. It is their case that a negligible interest, such as holding a few shares, would not amount to having sufficient financial interest so as to give rise to a conflict of interest. They have laboriously endeavoured to make out a case that since the respondent No.4 had held a small fraction of the total shares of the Company, and that too for enabling him to act as a Director on the Board, therefore, the disqualification or mischief provided under subsection (1) of section 18 would not be attracted. 13. The language used by the legislature in subsection (1) of section 18 is unambiguous and does not lend support to the above argument. The expressions 'financial' or 'professional' interest used in subsection (1) of section 18 are preceded by the word 'any'. The expression 'any' is used to indicate something that is not particular or specific. It is used to 'refer to one or something or a number of things, no matter how much or many'. The legislative intent is obvious and, therefore, quantity, amount or quantum of interest would not be relevant to trigger the disqualification provided under section 18(1) of the Act of 2012. Moreover, the financial or professional interest as a disqualification is attracted at the time of determining the eligibility of a person, since section 18(1) expressly provides that 'no person shall be appointed...'. A person, therefore, would not be eligible to be considered for appointment as a Chief Executive Officer if he or she has 'any financial or professional conflict of interest'. A single share in an entity at the time of determination of eligibility would be sufficient to render such a person as being disqualified for being considered. If the arguments advanced by the learned Additional Attorney General and the learned counsel for the respondent No.4 are accepted then something not provided by the legislature in the language of section 18(1) will have to be read therein. I am afraid that this argument is fallacious. The legislature has used language which is couched in the negative and, therefore, provisions of section 18 are to be interpreted strictly. Whether a person holds only one share or more than fifty percent of shares in a juridical person will have no relevance, since the same cannot by any stretch of the imagination be read in section 18(1). Moreover, since the condition relates to the eligibility of a person, therefore, its effect will precede the purported appointment and thus such a defect would not be curable later. 14. The expression 'conflict of interest' has been defined in the Black's Law Dictionary, Eighth Edition as follows.- "Conflict of interest. 1. A real or seeming incompatibility between one's private interests and one's public or fiduciary duties. 2. A real or seeming incompatibility between the interests of two of a lawyer's clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent. See Model Rules of Prof'1 Conduct 1.7(a). [Cases: Attorney and Client - 20.1.]" 15. It would also be instructive to quote from the book 'Conflict of Interest in the Professions', edited by Michael Davis and Andrew Stark (New York: Oxford University Press, 2001). The relevant portions are as follows.- "A conflict of interest is a situation in which some person P (whether…
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