Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 949

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Brig. Retd. SAFDAR HUSSAIN AWAN

Versus

GOVERNMENT OF PAKISTAN through Principal Secretary to the Prime Minister and others

Writ Petition No.8556 of 2007, decided on 14th May, 2008.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 4(2)(P)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Petitioner being a highly qualified Engineer was duly appointed as Director General (Technical) in B.P.20 in Evacuee Trust Properties Board---Decision to appoint petitioner was placed before full Board of Evacuee Trust Properties, which unanimously approved such appointment in its meeting---Secretary Minority Division, however, prepared a summary for Prime Minister describing petitioner's appointment as irregular with a proposal to regularize said appointment, but got issued a memorandum whereby petitioner's service was terminated---Validity---Once the government had granted an autonomous status to Evacuee Trust Properties Board, it was assumed and implied that it had stepped itself from interfering in the affairs of the Board, and that the Board having been given the autonomous status, was free to conduct its business according to its own independent decision---Any further interference by the government in the matter of autonomous body would tantamount to breach of its independent autonomy and such breach would be unwarranted and illegal---Was not at all obligatory upon autonomous body to appoint/remove employees at the whim of Federal Government/Prime Minister, when specific rules had been made for the appointment and for the removal of its employees---In the present case petitioner was appointed on contract by Board of Evacuee Trust Properties, which was an autonomous body, but termination of petitioner was made by the Prime Minister---Impugned order, in circumstances was passed by an incompetent authority, order of termination/removal passed by incompetent authority could not hold the field and same was declared without lawful authority and being an outcome of extraneous consideration, was set aside by High Court.

PLD 1987 SC 421 ref.

(b) Words and phrases---

----"Autonomous", defined and explained.

Dr. A. Basit for Petitioner.

Syed Iftikhar Hussain Shah, Deputy Attorney General for Pakistan for Respondents.

Qamar-uz-Zaman for Respondents Nos.3 and 4.

Date of hearing: 18th April, 2008.

JUDGMENT

HAFIZ TARIQ NASIM, J.---The backdrop of this writ petition is that the petitioner being a highly qualified Engineer is appointed as Director-General (Technical) in BS-20 in the Evacuee Trust Properties Board till further orders on 29-7-2005, however, another Notification dated 15-9-2005 was issued whereby the contract period of the petitioner was fixed initially for one year with effect from 4-1-2007 in MP-II at monthly salary of Rs.90,000. Needless to mention that the decision to appoint the petitioner as Director Projects was placed before the full board of E.T.P. Board on 14-12-2006 who unanimously approved as agenda Item No.13 in its 260th meeting, but surprisingly the Secretary, Minority Division Islamabad took it a matter of personal prestige and opted to perceive the petitioner's appointment by the Board by transgression of limits on the part of the Chairman, so the Secretary initialized a summary for Prime Minister describing the petitioner's appointment as irregular with a proposal to regularize the petitioner's appointment but got issued a memorandum dated 23-7-2007 whereby the petitioner was terminated and as well as the Chairman of E.T.P. Board was asked to explain the reasons for transgression of authority.

2. The learned counsel for the petitioner submits that the termination of contract is against the principle of audi alteram partem as admittedly before passing the said order neither the petitioner was served with a notice nor he was allowed to explain his case in person.

3. Further submits that the provisions of section 4(2)(P) of 1975 Act empowered the E.T.P. Board to appoint the petitioner on contract basis in its own assessment and discretion and no prior approval of the Federal Government was required for such appointment because the Board is a statutory Autonomous Body and is under a statutory duty to take all such actions as it deems fit for discharge of proper Management Function entrusted to it unless there is a prior restraint placed on these powers by means of any Rules, Scheme or direction made or issued in terms of E.T.P. (Management and Disposal Act) 1975 (Act No.XIII of 1975).

4. Further submits that the impugned memorandum was obtained by the respondent Secretary Minorities Affairs by presenting a distorted version of law and facts relating to the service status of the petitioner to the Prime Minister, particularly destroying the autonomy of the Board which otherwise is repugnant to the statute which governs the Functions of the Board.

5. On the other hand, the learned counsel for the respondents submits that practically the writ has become infructuous because the contract period started from 4-1-2007 has already been expired on 3-1-2008 being one year contract and it is just a frivolous litigation and nothing else. Further submits that the E.T.P. Board was constituted under the provisions of the E.T. Properties (Management and Disposal) Act, 1975 (Act of XIII of 1975) and to regulate the Board, the Recruitment and Service Regulation E.T.P. Board were made in exercise of powers conferred under section 29 of the Act ibid, but with the approval of the Federal Government and according to rule 1(b)(ii) the said Rules are not applicable to the contract employees and despite the Rules ibid, the petitioner cannot agitate his grievance through this writ petition.

6. Further submits that as the petitioner's appointment was a violative of Office Memorandum dated 1-4-2006 (Annexure "VI" attached with the reply to the writ petition), hence it cannot sustain in the eye of law.

7. Arguments heard; record perused.

8. After hearing the learned counsel for the respondent, the petitioner's learned counsel at the very outset categorically stated that he will not insist for reinstatement, but he needs vindication because despite termination of contract the petitioner faced humiliation amongst family, colleagues and the society because the petitioner is highly qualified Engineer, served the Pakistan Army for a considerable long time, rose up to the level of Brigadier virtually put his blood to the E.T.P. Board by way of working day and night whereas he was rewarded by way of termination and that too by the order of Prime Minister who was not competent in that matter.

9. The petitioner's learned counsel submits that his client wants a decision on the core issue that "whether in such-like appointments the E.T.P. Board which is admittedly an Autonomous Body was competent to appoint/terminate the petitioner's category's officer without intervention of the Federal Government or the approval of Federal Government/Prime Minister is mandatory."

10. To resolve the present controversy first of all I have to advert the plain meaning of the Autonomous Body and its concept.

11. The word Autonomous is derived from the word Autonomy which is defined in Blank's Law Dictionary VIII addition in the following terms:-

(i) The right of self-Government.

(ii) A self-governing State.

12. This essentially means the key element in an "Autonomous Body" is its Autonomy and in other words its independence. An Autonomous Body is essentially such a Body that works and carries on its business independently without any impediment in its way.

13. Once the Government has granted an Autonomous status to the Body as in the present case to E.T.P. Board, it is assumed and implied that it had stepped back from any interference in that Body from that points on words and that the Body being given the Autonomous status was free to conduct its business according to its own independent decision. Any further interference by the Government in the matter of Autonomous Body tantamount to breach its independent Autonomy therefore, such breach would be unwarranted and illegal. It is not at all obligatory upon the Autonomous Body to appoint/remove employees at the whims of the Federal Government/Prime Minister when specific Rules have been made for the appointment and or the removal of its employees, because if such interference is allowed the word Autonomous/self-governing would certainly become meaningless and the status of being Autonomous would not be much different from that wholly Governmental Control Body. In the present controversy it is an admitted position that the petitioner was appointed on contract but by the Board and it is also an admitted position that the termination of the petitioner was made by the Prime Minister/Federal Government meaning thereby that the impugned termination order was passed by an incompetent authority.

14. It is settled law laid down by the Honourable Supreme Court of Pakistan in case of PLD 1987 SC 421, that any order of termination/removal by an incompetent authority cannot hold the field, so far the contention of the learned counsel for the respondents that the writ is not maintainable seems to be without force on the sole ground that E.T.P. Board undisputedly falls within the definition of "Person" as per the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and is amenable to the writ jurisdiction thus this contention is repelled.

15. As noted above, the petitioner is not interested to rejoin its assignment, hence no order for the petitioner's reinstatement is passed, however, keeping in view the above discussions and findings, the impugned orders dated 23-7-2007 and 31-8-2007 are declared without lawful authority being an outcome of extraneous consideration and are hereby set aside.

The writ petition is allowed in the above terms.

H.B.T./S-31/L Petition allowed.

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