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Petitioner: FEDERATION OF PAKISTAN VS Respondent: RASHID AHMED and others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Shaukat Aziz Siddiqui Title: FEDERATION OF PAKISTAN vs RASHID AHMED and others Case No.: I.C.A. No.267 of 2015 C.P. No.105 of 2012 Date of Judgment:2015-09-02 Reported As: 2016 PLC (C.S.) 239 Result: Appeal allowed
JUDGMENT
JUDGMENT ' ATHAR MINALLAH, J.--- Through the instant Intra Court Appeal, the Federal Government has assailed the judgment dated 22-05-2015, passed by the learned Single Judge in chambers in W.P.No.1954/2014. The learned Single Judge in chambers allowed the Petition filed by the respondent No.1, and the notification dated 17-04-2014 was set aside. 2. The facts, in brief, are as follows:- 20-12-2012: The august Supreme Court passed an order in Constitution Petitions Nos.105/2012, 104/2012 and 117/2012, whereby one Mr. Abdul Jabbar was restrained from acting or representing himself as Chairman or Acting Chairman of the Pakistan Electronic Media Regulatory Authority (hereinafter referred to as the "Authority"). 08-01-2013: The Director General of the Ministry of Information and Broadcasting sent a note to the ' Secretary of the Ministry, recommending the names of seven potential candidates to be considered for appointment as Chairman of the Authority, on the ground that the Acting Chairman had been restrained from acting as such by the august Supreme Court vide order dated 20-12- 2012. The names of three retired officials and four serving officials had been recommended. It is pertinent to mention that the respondent No.1 at that time was holding the post of Secretary Information and Broadcasting, and his name was also recommended at Sr.No.1 of the list of serving officers. 15-01-2013: The august Supreme Court, on 15-01-2013, explicitly observed that the position of the Chairman of the Authority "has to be filled by a person who fulfills the exceptional and stringent requirements prescribed in the PEMRA Ordinance, 2002 (hereinafter referred to as the "PEMRA Ordinance") and not by a casual appointee." It was further observed and held that the
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'appointment has to be made through an open and transparent process to ensure that the appointee meets the objective criteria' specified in the PEMRA Ordinance. It is pertinent to mention that the respondent No.1 was present before the Supreme Court when the order dated 15-01-2013 was passed. He has been marked present, along with the officer who had initiated the note dated 08-01-2013. 08-01-2013: Pursuant to the note initiated by the Director General, the respondent No.1, in his capacity as Secretary Ministry of Information and Broadcasting, moved a summary for the appointment of the Chairman of the Authority. A panel of three persons was proposed: which included his name as well. 25-01-2013: The then Prime Minister of Pakistan advised the President to approve the appointment of respondent No.1 as Chairman of the Authority from among st the recommended panel contained in para 5 of the summary. 26-01-2013: The then President of -Pakistan gave his approval to the advice tendered by the Prime Minister. 26-01-2013 A notification was issued in exercise of powers conferred under Sections 6 and 7 of the PEMRA Ordinance, and the respondent No.1 was appointed as the Chairman of the Authority. The notification is signed by the officer who was present before the august Supreme Court when the order dated 15-01-2013 was passed, directing that the appointment of Chairman of the Authority must be through 'an open and transparent process'. The direction was obviously to be executed by the respondent No.1 and the Ministry of which he was the administrative head. 22-04-2013: A summary was moved recommending MP-I scale w.e.f. 27-04-2013 in respect of the respondent No. 1. 20-05-2013: The Establishment Division opposed the proposal initiated by the Ministry of Information and Broadcasting, whereby it was recommended that the respondent No.1 be given MP-I scale w.e.f. 27-04-2013. It was unambiguously pointed out by the Establishment Division that neither had the post of Chairman of the Authority been advertised, nor had the respondent No.1 applied through the proper channel so r the approval of the Prime Minister by the Secretary Ministry of Information, Broadcasting and National Heritage. Serious allegations were made against the respondent No.1 and it was highlighted that his appointment as Chairman of the Authority was made in violation of the prescribed rules. It was qlso stated that the appointment was in violation of the principles of transparency. The removal of the respondent No.1 as Chairman of the Authority was recommended. It was further recommended that a process be initiated for the appointment of a Chairman. 17-09-2012: The Prime Minister requested that the summary may be resubmitted with necessary clarifications. 02-10-2013: The summary was resubmitted to the Prime Minister. It was specifically highlighted that the appointment of the respondent No.1 was made in violation of the order of the august Supreme Court, dated 15-01-2013. 04-12-2013: The Prime Mas to ensure a transparent process. 09-09-2013: A summary was moved foinister desired that a copy of the order of the august Supreme Court dated 15-01-2013 be placed on record. 0942-2013: The order of the august Supreme Court dated 15-01-2013 and the summary pursuant to which the respondent No.1 was approved for appointment as Chairman PEMRA was placed on record for the consideration of the Prime Minister. 12-12-2013: The Special Secretary, Law and Justice Division, while referring to various judgments of the august Supreme Court, particularly the order dated 15-01-2013, concluded that the
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appointment of the respondent No.1 did not satisfy the parameters laid down by the august Supreme Court and, therefore, supported the proposal for the removal of the respondent No.1 as the Chairman of the Authority. 13-12-2013: The Prime Minister advised the President to approve the removal of the respondent No.1 as Chairman of the Authority on the ground that his appointment was void ab initiation. 14-12-2013: The Prime Minister's advice was approved by the President. 16-12-2013: The notification regarding the removal of respondent No.1 as Chairman of the Authority was issued. 26-12-2013: The notification dated 16-12-2013 was set-aside by this Court by accepting the petition of the respondent No.1 i.e. W.P. No.4606/2013, on the ground that proper opportunity of hearing was not afforded to the latter. It was further observed and held that the respondents i.e. The Federal Government, will have a right to proceed against the petitioner, if they deem proper, provided an opportunity of hearing is provided to the petitioner. The order of this Court was accepted by the respondent No.1, as he did not challenge the same. 06-02-2014: A Show Cause Notice was issued to the respondent No. 1 . It was, inter-alia, alleged that his appointment was made against the principles of transparency, particularly the order of the august Supreme Court dated 15-01-2013. Other serious allegations were also made against the respondent No.1. 13-02-2014: An interim reply to the Show Cause Notice was submitted by the respondent No.1. The respondent No.1 did not advert to the allegations relating to his appointment being in violation of the principles of transparency, particularly the order passed by the august Supreme Court dated 15-01-2013. Moreover, a list of documents was annexed and it was requested that the same may be provided to him. 26-02-2014: The Authorized Officer fixed the date for personal hearing. The documents requested were also secured so that they could be examined by the respondent No. 1. The respondent No.1 did not appear on the date fixed for personal hearing. 06-03-2014: Another date for personal hearing was fixed. However, the responNo.1 restrained from appearing before the authorized officer so as to avail the opportunity of hearing. 12-03-2014: The Authorized Officer submitted his report to the President. It was concluded that the appointment of the respondent No.1 as Chairman of the Authority was illegal and void ab initio and, therefore, his dismissal was recommdent No.1 excused himself from appearing on the ground that W.P.No.314/2014 was pending before this Court. No injunctive order was passed in the said proceedings nor was the . Respondent ended. 02-04-2014: The Ministry of Law, Justice and Human Rights submitted its opinion. 08-04-2014: The Attorney General of Pakistan submitted his opinion. The office of the Prime Minister submitted the case along with the report of the Authorized Officer for consideration of the President. 15-04-2014: The President's Secretariat requested the Prime Minister's office to process the matter pursuant to Article 48 of the Constitution of the Islamic Republic of Pakistan, 1973. 16-04-2014: The Prime Minister advised the President to approve the recommendations of the Authorized Officer contained in his report. 17-04-2014: The President approved the advice tendered by the Prime Minister. 17-4-2014; A notification regarding the dismissal of the respondent No.1 as Chairman of the Authority was issued. 24-04-2014: The respondent No.1 invoked the jurisdiction of this Court under Article 199 of the Constitution, by filing W.P.No.1954/2014, assailing the notification dated 17-04-2014.
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22-05-2014: The learned Single Judge in chambers accepted the petition of the respondent No.1 and the notification dated 17-04-2014 was set-aside. 01-06-2015: The instant Intra Court Appeal has been filed by assailing the judgment dated 22-05- 2015, passed by the learned Single Judge in chamber in W. P. No . 1954/2014. 3. Mr. Afnan Karim Kundi, the learned Additional Attorney General, has argued that; the impugned judgment has been rendered against and in disregard of the relevant facts placed on record; the impugned judgment suffers from non-reading and misreading of facts; a detailed Show Cause Notice was issued to the respondent No.1; the learned Single Judge in chambers has not taken into consideration the correct interpretation of the expression "misconduct" under Section 7 of the PEMRA Ordinance; the expression "misconduct" has been defined and explained in Section 7 of the PEMRA Ordinance and includes conduct prejudicial to good order or unbecoming of a gentleman; the learned Single Judge in chambers has misinterpreted Section 7 by coming to the conclusion that the allegations mentioned in the Show Cause Notice did not pertain to the period when the respondent No.1 was performing his functions as the Chairman and, therefore, any action taken or order passed while holding the post of the Secretary, Ministry of Information and Broadcasting did not come within the ambit of "misconduct" as defined under Section 7; the appointment was maneuvered and made by the respondent No.1, in violation of the principles and law laid down by the august Supreme Court; the appointment was made on the basis of a summary moved by the respondent No.1 himself in his capacity as the Secretary, Ministry of Information and Broadcasting, particularly by concealing that the august Supreme Court had held and observed in its order dated 15-01-2013 that the appointment is to be made in a transparent and open manner; reasonable opportunity of hearing was afforded but was deliberately avoided and refused by the respondent No.1; the power of the Federal Government to proceed against the respondent No.1 was held valid by the Islamabad High Court in its judgment dated 26-12-2013, passed in W.P No.4606/2013; the Show Cause Notice and opportunity of hearing was in pursuance of the said order of this Court in W.P.No.4606/2013 and yet the respondent No.1 preferred to show his defiance by refusing to avail the said opportunity afforded to him; the interim reply filed by the respondent No.1 to the Show Cause Notice was evasive, as he obviously could not justify his appointment in violation of the order of the august Supreme Court dated 15- 01-2013 and the principles and law laid down in various judgments, inter-alia, "Muhammad Ashraf Tiwana and others v. Pakistan and others", 2013 SCM R 1159 and "Muhammad Yasin v. Federation of Pakistan and others", PLD 2012 SC 132; the learned Single Judge in chambers did not appreciate that there was nothing on record to establish mala fide; the order dated 26-12-2013, passed in W.P.No.4606/2013 was complied with and a reasonable opportunity afforded to the respondent No.1 but he did not avail the same willfully and for mala fide reasons; it has been erroneously assumed that the respondent No.1 was given only seven days to respond to the Show Cause Notice and, therefore, the same was insufficient; the respondent No.1, besides being given an opportunity to submit a written reply to the Show Cause Notice, was afforded an opportunity of a personal hearing on 26-02-2014 and 06-03- 2014, while the impugned notification was issued on 17-04-2014; the defiance of the respondent No.1 is evident from his conduct as he did not avail the reasonable opportunity afforded to him nor did he make any attempt between 06-02-2014 till 17-04-2014 to defend the serious allegations raised against him in the Show Cause Notice; the record requested by the respondent No.1, though not relevant, was yet made available for his examination, but he preferred not to avail the said opportunity. 4. Mr. Idrees Ashraf, ASC, appeared on behalf of the respondent No.1 and argued that the post of the Chairman of PEMRA is a statutory appointment created by the PEMRA Ordinance; the post of Chairman PEMRA has a fixed term for four years and he or she can only be removed on the grounds listed in Section 7 of the PEMRA Ordinance; an explanation of Section 7 of the PEMRA
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Ordinance provides that the expression misconduct, inter-alia, includes conduct prejudicial to good order or unbecoming of a gentleman; the misconduct has to relate to acts, omissions or conduct during the period when a person is appointed as Chairman PEMRA; the alleged acts, omissions or conduct mentioned in the Show Cause Notice do not relate to the respondent No.1 in his capacity as Chairman PEMRA and, therefore, are outside the scope of Section 7 of the PEMRA Ordinance; it is evident from the notification, whereby the respondent No.1 was appointed Chairman PEMRA, that the competent authority had approved his appointment on the advice of the Prime Minister pursuant to Section 6 of the PEMRA Ordinance; the respondent No.1 had neither appointed himself as the Chairman PEMRA nor can he be proceeded against under the PEMRA Ordinance; neither at the time of his appointment nor the filing of the instant petition did the petitioner suffer from any disqualification prescribed in respect of the office of the Chairman PEMRA; the learned Single Judge in chambers has correctly interpreted the provisions of the PEMRA Ordinance; the notification dated 17-04-2014 was issued without affording the respondent No.1 with a reasonable opportunity to defend himself against the allegations made in the Show Cause Notice; the appointment of the respondent No.1 has not been challenged, nor has any writ of unwarrantable been filed and, therefore, this Court is not vested with suo motu powers to go beyond the prayer sought by the respondent No.1 in his petition i.e. W.P.No.194/2014; the impugned judgment is in accordance with law and no legal infirmity has been pointed out so as to justify any interference: 5. The learned Additional Attorney General and the learned counsel for the respondent No.1 have been heard and the record perused with their able assistance. 6. The questions which emerge from the pleadings and the arguments raised by the learned Additional Attorney General and the learned counsel for the respondent No.1 for our consideration are, firstly, whether the allegations mentioned in the Show Cause Notice constituted misconduct, particularly within the meaning of the expression "misconduct" as incorporated in the Explanation of Section 7 of the PEMRA Ordinance; secondly, whether a reasonable opportunity of hearing was afforded to the respondent No.1 and the requirements of due process were satisfied, and thirdly, whether in the facts and circumstances of the instant appeal it would not be just and proper for the process of the appointment of the Chairman of the Authority to go ahead pursuant to the directions given by the august Supreme Court vide order dated 19-08-2015, passed in C.P.No.105/2012 and C.P.No.104/2014. The directions of the Supreme Court in para 2 (b) & (c) of the order are as follows:- "(b) Until the said ICA is decided, the government may proceed with a rigorous and transparent process for filling the position Chairman PEMRA in line with the principles of law laid down in the cases titled Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Pakistan (2013 SCMR 1159). (c) The process of appointing the Chairman PEMRA shall be completed within 30 days positively. " 7. The Pakistan Electronic Media Regulatory Authority Ordinance No-XIII of 2002 (hereinafter referred to as the "PEMRA Ordinance") has been enacted to regulate electronic media in Pakistan. The Pakistan Electronic Media Regulatory Authority (hereinafter referred to as the "Authority") was established under Section 3 of the Ordinance. Section 3 (2) provides that the Authority shall be a body corporate having perpetual succession and a common seal with powers subject to the provisions of the PEMRA Ordinance; Section 4 provides for the functions of the Authority by making it responsible for regulating the establishment and operation of all broadcast media and distribution services in Pakistan, established for the purpose of international, national, provincial, district, local or special target audiences. Subsection (2) of Section 4 provides that the Authority shall regulate the distribution of foreign and local TV and radio channels in Pakistan. The Authority is, therefore, one of the most important statutory regulatory authority, and the efficient and
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effective discharge of its obligations is inextricably linked with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution"). 8. Section 6 of the PEMRA Ordinance provides that the Authority shall consist of a Chairman and twelve members to be appointed by the President of Pakistan. Subsection (2) of Section 6 of the PEMRA Ordinance prescribes the qualifications for a person to be appointed as the Chairman, and provides that he or she shall be an "eminent professional of known integrity and competence, having substantial experience in media, business, management, finance, economics or law". Section 7 prescribes a fixed term of four years for holding the office of the Chairman, unless removed earlier for misconduct or physical or mental incapacity. The retirement age for the Chairman is sixty five years. An Explanation has been incorporated in section 7, which defines or explains the meaning of the expression "misconduct". The Explanation provides that misconduct means conviction for any offence involving moral turpitude and includes conduct prejudicial to good order or unbecoming of a gentleman. 9. It is obvious from the above, that exceptional and stringent requirements have been prescribed as qualifications for a person to be appointed as the Chairman of the Authority. Once a person has been appointed as the Chairman, a fixed term of four years has been provided under the PEMRA Ordinance. However, during the fixed term of the tenure, the Chairman may be removed on three grounds i.e. Misconduct, physical incapacity or mental incapacity. The expression "misconduct", as defined in the Explanation to Section 7 of the PEMRA Ordinance, has expansive meanings and connotations. By incorporating the expression "conduct prejudicial to good order or unbecoming of a gentleman", the legislature obviously intended and expected that the person holding the position of the Chairman of the Authority shall practice or demonstrate the highest standards of conduct. Conduct "unbecoming of a gentleman" enormously increases the expectation and threshold of conduct of a person holding the post of Chairman. Thus, any act or omission not expected from a "gentleman" will fall within the meaning of 'misconduct' as per Explanation incorporated in section 7 of the PEMRA Ordinance. The attributes of a 'gentleman' includes being chivalrous, courteous and honorable. Likewise, conduct prejudicial to good order would, inter alia, include acts and omissions which would undermine the authority of the office of the Chairman or be in violation of the stringent qualifications prescribed as eligibility for being appointed to the said office. Integrity is an essential qualification for the purposes of being considered and appointed to the post of the Chairman. A person whose appointment is illegal or who allows the illegal process to continue, and thereafter accepts the appointment in violation of law, obviously renders him or herself disqualified from holding the statutory post. Continuing to hold the post in such circumstances would tantamount to be prejudicial to good order. Moreover, it is an essential attribute or characteristic of a 'gentleman' to be honorable and act as such. Would then a 'gentleman' hold the post as the Chairman of the Authority if his or her appointment is made in violation of law, particularly in defiance to explicit directions of the august Supreme Court? Would such conduct not be prejudicial to good order and thus fall within the ambit of misconduct? A person who has been appointed as Chairman in violation of the law, and then continues to hold the post, undoubtedly brings his or her conduct within the fold of 'misconduct', as such an act or omission is not only prejudicial to good order, but is indeed conduct unbecoming of a gentleman. A gentleman is obviously not expected to hold the post of Chairman, if the process through which he or she was selected and thus appointed was neither transparent nor open or otherwise illegal or void. An obligation to demonstrate high standards of etiquette, moral and ethical values, expected from a gentleman, is obvious from the language of section 7 of the PEMRA Ordinance. We, therefore, hold that a person would be liable to be removed for misconduct under section 7 of the PEMRA Ordinance if he or she is holding the post of the Chairman illegally, whether the illegality is due to the reason that the
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person did not fulfill the stringent criterion and qualifications prescribed by the legislature, or the process of selection leading to the appointment was in violation of the settled law. Such a person cannot claim a right to hold the post and, therefore, his status would be that of a usurper and in such circumstances acting to be or holding himself out as the Chairman will constitute misconduct. We, therefore, have not been able to persuade ourselves to concur with the proposition that the acts or omissions on the part of the respondent. No.1 and his role during the process leading to his illegal and void appointment as the Chairman, accepting the appointment despite the directions of the august Supreme Court vide order dated 15-01-2013 and thereafter holding the said post, would not fall within the ambit of misconduct in terms of section 7 of the PEMRA Ordinance. The misconduct stems from holding the post, having been illegally appointed through a process which is in violation of the settled law. The expression 'misconduct' in section 7 of the PEMRA Ordinance, therefore, would include an allegation of holding the post of the Chairman illegally, or if the appointment was made through a process in violation of the settled law. 10. The law relating to the appointment of positions such as Chairman of the Authority and in the case of other statutory regulatory authorities is by now well settled, The question was considered and the principles and law in this regard have been elucidated by the august Supreme Court in "Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division" PLD 2012 Supreme Court 132 and "Muhammad Ashraf Tiwana and others v. Pakistan and others", 2013 SCM R 1159. In the case of Muhammad Yasin supra the august Supreme Court laid down the test for examining the validity of the appointment process. The three-pronged test elucidated in the said judgments is as follows:- "(a) whether an objective selection procedure was prescribed; (b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e. Selection of the sort of candidate envisaged in the relevant provision of the statute. (c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigor,…
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