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Official Citation: 2023 IHC 438
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-09-21
Parties: Prof. Dr. Shahid Mahmood Baig vs Ministry of Science and Technology and others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-09-21, officially reported as 2023 IHC 438. In this matter between Prof. Dr. Shahid Mahmood Baig and Ministry of Science and Technology 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 2023IHC438
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:Prof. Dr. Shahid Mahmood Baig vs Ministry of Science and Technology and
others Case No.: Writ Petition No. 2481 of 2023 Date of Judgment:2023-09-21 Reported As: 2023 IHC 438, 2024 PLC (C.S.) 1451 Result: Petition Allowed Judgment
SAMAN RAFAT IMTIAZ, J.- 1. The Petitioner has filed this Writ Petition to assail the Show Cause Notice dated 07.08.2023 ("Impugned Show Cause Notice") issued to him and the Order dated 07.08.2023 ("Impugned Order"), whereby he has been sent on forced leave pending disciplinary proceedings against him. Facts: 2. The brief facts of the instant Petition are that the Respondent No. 4 [Pakistan Science Foundation] (herein after referred to as "PSF/Respondent No. 4") is an autonomous body which was established under Section 3 of the Pakistan Science Foundation Act, 1973 ("PSF Act"). The post of Chairman of PSF/Respondent No. 4 had been lying vacant therefore was advertised on 19.04.2020. After qualifying through a competitive process, the Petitioner, who is an eminent scientist and who has been awarded the Sitara-e-Imtiaz, was appointed as the Chairman of PSF/Respondent No. 4 on 28.12.2020 on Management Position-1 Scale for a period of three years by Respondent No. 3 [the President of the Islamic Republic of Pakistan] ("President/Respondent No. 3"). 3. It has been alleged that after the appointment of the Petitioner as Chairman, the Respondent No. 1 [Ministry of Science and Technology] (herein after referred to as the "Ministry/Respondent No. 111) and Respondent No. 2 [the Federation] have been creating hurdles and preventing the Petitioner from performing his official duties as per the PSF Act and the rules and regulations made thereunder by constant interference and encroachment upon his statutory mandate. The Petitioner raised this issue before the President/Respondent No. 3 on two different occasions through emails dated 12.06.2023 and 01.08.2023. The matter was also raised by the Chairman of the
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Senate Standing Committee for Science and Technology before the Secretary Establishment Division vide his Letter dated 04.08.2023. 4. On 07.08.2023 the Ministry/Respondent No.1 issued the Impugned Show Cause Notice to the Petitioner and the Impugned Order was also issued whereby, inter alia, he has been sent on forced leave. This exercise was allegedly done with the ulterior motive to take control of the affairs of PSF/Respondent No.4. It was objected to vide Letter dated 08.08.2023 written by PSF/Respondent No. 4 to the Ministry/Respondent No.1. On the same date i.e. 08.08.2023 the officials of the Ministry/Respondent No. 1 and Respondent No. 2 trespassed into the premises of PSF/Respondent No. 4 and tried to take control of the Petitioner's office using force. A complaint in this regard was made to the Station House Officer, Police Station Secretariat by PSF/Respondent No. 4. Arguments on behalf of the Petitioner: 5. The legal counsel for the Petitioner emphasized that PSF/Respondent No.4 is admittedly an autonomous body established under the PSF Act. The Petitioner was appointed as Chairman of PSF/Respondent No. 4 by the President/Respondent No. 3 pursuant to Sections 5 and 6 of the PSF Act vide Notification dated 28.12.2020. She highlighted that it is the President/Respondent No. 3 who may terminate the appointment of the Chairman of PSF/Respondent No. 4 pursuant to sub-section (3) of Section 6 ibid. Notwithstanding the foregoing legal position, the Impugned Show Cause Notice dated 07.08.2023 has been issued by the Ministry/Respondents No. 1 and the Respondent No. 2 through Additional Secretary (In charge) and on the same date the Impugned Order has been issued which refers to initiation of disciplinary proceedings under Clause (ix) of paragraph 6 of the Management Position Scales Policy, 2020 dated 22.06.2020 (" MP Policy") during which time the Petitioner has been sent on leave initially for a period of sixty days purportedly as per clause (vii) of Office Memorandum ("O.M.") dated 29.07.2022 issued by the Establishment Division. 6. The learned counsel firstly argued that the MP Policy does not apply to the Petitioner but that even otherwise the Impugned Show Cause Notice and Impugned Order have not been issued by the officer empowered to do so under the relevant clause of the MP Policy. Moreover, she claims that the Chairman cannot be sent on leave pursuant to the Establishment Division's O.M. referred to in the Impugned Order. 7. The counsel for the Petitioner argued that the instant Writ Petition is maintainable despite the fact that the Petitioner is a contractual employee by relying upon Pakistan Defence Officers' Housing Authority and others vs. Lt. Col. Syed Jawaid Ahmed, 2013 SCMR 1707, whereby it was held that statutory bodies performing some of the functions of Federation/State create public employments and as such any action or order passed by them in violation of the statue creating those bodies can be interfered with by the High Court under Article 199 of the Constitution. She also relied upon Prof. Dr. Qazi Tahir Uddin vs. The Secretary, Pakistan Medical Commission, Islamabad and 3 others, 2022 PLC(CS) 805, wherein another Single Bench of this Court held that although a contractual employee cannot insist on continuation of his employment by invoking Article 199 of the Constitution, however, such principles do not apply where a statue in explicit terms requires appointment to be made for fixed tenure and also prescribes a process and grounds for removal of the appointee. In this regard, she relied upon the terms and conditions of the Petitioner's employment as per the Letter dated 16.06.2021 whereby the Petitioner has been employed for a fixed term of three years subject to termination upon one month's notice by either side or payment of one month's basic pay in lieu thereof without assigning any reason. 8. She further argued that the petition is maintainable against show cause notice despite the ruling in Commissioner Inland Revenue and others vs. Jahangir Khan Tareen and others, 2022 SCMR 92 as the Impugned Show Cause notice has been issued without jurisdiction. She also relied upon Muhammad Ashraf Tiwana and others vs. Pakistan and others, 2013 SCMR 1159 in this regard. In order to demonstrate how the Impugned Show Cause Notice issued to the Petitioner is without
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jurisdiction, she firstly submitted that since the President/Respondent No. 3 has the hiring and firing powers there is no question of an officer of the Ministry/Respondent No. 1 initiating disciplinary proceedings against the Chairman of PSF/Respondent No. 4. She further submitted that application of the MP Policy by virtue of mere reference to the same in the Notification dated 28.12.2020, whereby the Petitioner was appointed is misplaced in view of Clauses (xii) and (xiii) under paragraph 6 of the MP Policy, where under only the Petitioner's emoluments can be determined in accordance with MP scale as it specifically states that other provisions of the Policy shall not apply to the positions in statutory bodies in case the MP policy is used only as benchmark. She further submits that even otherwise the President/Respondent No. 3 cannot delegate any of the powers conferred upon him vide Act,1973 in the absence of such authority to delegate expressly provided in the Act and relied upon Allied Bank Limited vs. The Commissioner of Income Tax, Lahore and others, 2023 SCMR 1166 in this regard. 9. Additionally, she relied upon the case of Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others vs. Riaz-ul-Haq, 1997 SCMR 1552 to assert that the principles enshrined in the Civil Servants (Efficiency and Discipline) Rules, 1973 ("E&D Rules") must also be adhered to even in the case of contractual employees of statutory bodies. She submitted that as such the Impugned Show Cause Notice is also in violation of the E&D Rules as the term "authority" has been defined in Section 2(c) thereof, which expressly provides in its second proviso that where the authority is President/Respondent No. 3 all functions under the said rules, except approval of initiating the disciplinary proceedings, shall be performed by the respective cadre administrator. Whereas according to the learned counsel the terms and conditions of the Petitioner's appointment as Chairman contained in Letter dated 16.06.2021 do not envisage disciplinary proceedings. 10. Without prejudice to the foregoing, she relied upon Rule 9 of the E&D Rules whereby disciplinary proceedings are to be carried out by an officer senior in rank to the accused. She contends that the Impugned Show Cause Notice dated 07.08.2023 has been issued by an officer who is the Petitioner's junior and as such is in violation of the principles of the E&D Rules. In answer to a question she submitted that it is only the Secretary who is of equivalent rank to the Petitioner. She highlighted that not only is the Additional Secretary (In charge) who has issued the Impugned Show Cause Notice, the Petitioner's junior but he is also merely in charge of the post. She submitted that an officer exercising look after charge cannot initiate disciplinary proceedings by relying on O.M. dated 09.04.2021 whereby the practice of assigning look after charge of a higher post to an officer of lower rank has been deprecated by observing that there is no provision of look after charge in the Civil Servants Act, 1973 or the rules made thereunder. It is further stated therein that as a matter of principle it is the senior most officer who is normally asked by the head of the Division/Department to look after the work of a post when its incumbent is temporarily away but that issues which are of quasi-judicial nature cannot be taken by an officer not formally designated to exercise those powers and essentially only day-to-day decisions can be taken by such officer. Therefore, according to the learned counsel for the Petitioner the Impugned Show Cause notice to initiate disciplinary proceedings could not be issued by an Additional Secretary and that too someone who only had look after charge of the position. Similarly, the Hearing Notice dated 18.08.2023 has been issued by an officer junior to the Petitioner despite the fact that the "Hearing Officer" cannot be one who is junior in rank to the accused" as per definition provided in Section 2(g) of the E&D Rules. 11. Coming to the Impugned Order dated 07.08.2023, whereby the Petitioner has been sent on forced leave the Petitioner's learned counsel relied upon Federation of Pakistan vs. Saeed Ahmed Khan and others, 2016 PLC (C.S.) 48, Jrfan Ahmed and others vs. Federation of Pakistan and
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others, 2016 PLC (C.S.) 491 and an unreported judgment of this Court passed in W.P No.4846/2018 titled Haider Zaman Khattak vs. Federation of Pakistan and 2 others to argue that the Respondents are not authorized to send the Petitioner on forced leave. She referred to Clause (vii) of OM dated 29.07.2022 issued by the Establishment Division referred to in the Impugned Order, which provides for leave of officials working in MP-1 Scale but does not envisage forced leave. She also refers to Rule 5 of the E&D Rules whereby only the "authority" can send the Petitioner on leave, which in this case is the President/Respondent No. 3. 12. She further submitted that the Impugned Order also granted "look after charge" to the Joint Secretary in spite of the fact that no such authority vests with the Ministry/Respondent No. 1 and that it is also in violation of Section 6(1) of the PSF Act where under Chairman of PSF/Respondent No. 4 is required to be a scientist as well as Clause (vi) of paragraph 6 of the MP Policy whereby additional charge in the case of heads of autonomous body may only be granted to a civil/government servant of equivalent grade and that too with the approval of the appointing authority and for not more than 3 months. According to Schedule III of the MP Policy, the equivalent of MP-I is BPS-22 whereas the Joint Secretary belongs to BPS-20. Moreover, the said Order has been issued without the approval of the President/Respondent No. 3 and also indefinitely till further orders. 13. Lastly she submitted that the Impugned Orders are tainted with mala fide as one day after issuance of the Impugned Show Cause Notice the officer, who issued the Hearing Notice, registered FIR No.299/2023 dated 08.08.2023 under Sections 352, 353, 186, 342, 506(ii), 148, 149 PPC, Police Station Secretariat, Islamabad against the Petitioner and as such he cannot be permitted to carry out disciplinary proceedings against the Petitioner. She also referred to correspondence by the Petitioner to the President/Respondent No.3, whereby the former had informed the latter about the undue interference by the Ministry/Respondent No.1 in the matters of Respondent No.4, which culminated in issuance of Displeasure Notice dated 10.08.2023 by the Ministry/Respondent No.1, in view of which it is clear according to the learned counsel for the Petitioner that issuance of the Impugned Show Cause Notice is with mala fide intentions. Arguments on behalf of the Respondents: 14. At the very outset, the learned Additional Attorney General on behalf of Respondents No. 1 and 2 and the learned counsel for PSF/Respondent No. 4 challenged the maintainability of the instant Petition by pointing out that the Petitioner is admittedly a contractual employee and further that the PSF/Respondent No. 4 does not have statutory rules of service nor is the MP Policy statutory in nature. 15. On merits, the learned counsel for PSF/Respondent No. 4 firstly clarified that the Petitioner's employment has not been terminated, which right admittedly belongs to the President/Respondent No. 3. Question was raised as to what authority, if any, the Ministry/Respondent No.1 has to initiate disciplinary proceedings against the Chairman of PSF/Respondent No.4. The learned counsel for PSF/Respondent No.4 submitted that the employment of the Petitioner is governed by the MP Policy by virtue of the Notification of his appointment dated 28.12.2020. The learned Additional Attorney General referred to the Gazette Notification dated 01.01.2021 of the Petitioner's appointment which categorically states that the said appointment is on the terms and conditions of the MP Policy dated 22.06.2020. They explained that the entire process of appointment was carried out according to the MP Policy and in this regard referred to the advertisement issued by the Ministry/Respondent No.1 for the position of Chairman of PSF/Respondent No. 4 dated 19.04.2020 which refers to MP-I but that the Petitioner never objected to it. 16. In this regard they also referred to the case of the predecessor of the Petitioner who was required to resign from his service as Associate Professor in the University of Punjab, Lahore as per
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the MP Policy despite the fact that the said person had also contended that his resignation from existing service shall not form part of his terms and conditions by relying upon Clauses (xii) and (xiii) under paragraph 6 of the MP Policy. The learned counsel argued that the foregoing treatment meted out to the predecessor of the Petitioner is clearly indicative of the fact that the President/Respondent No.3 has consciously applied the MP Policy to the appointment of the Chairman of PSF/Respondent No. 4 in toto and as such there is no merit in the contention raised on behalf of the Petitioner that reference to the MP Policy in the Notification of appointment merely implies application thereof to the extent of emoluments. 17. They further alleged that the present challenge by the Petitioner to the application of MP Policy is malafide given that he was at all material times aware of its applicability and accepted the position subject thereto and is only challenging its application at the fag end of his term. It was also highlighted that the Petitioner has himself relied upon a Letter dated 04.08.2023 written by Senator Sardar M. Shafiq Tareen whereby the summary for the removal of the Petitioner as Chairman of PSF/Respondent No. 4 has been described as illegal on account of not following the MP Policy and therefore, the present challenge to the MP Policy by the Petitioner is a classic case of blowing hot and cold at the same time. 18. Referring to the MP Policy the learned Additional Attorney General read out the introductory paragraph whereby it is stated that the policy is for making appointments of highly skilled/qualified professionals from open market on tenure basis (contract) against MP Scale positions in Ministries/Divisions, Attached Departments, Sub-ordinate Offices, Autonomous or Semi-Autonomous Bodies (either statutory or otherwise), Regulatory Authorities, etc. He submitted that the introductory paragraph makes it clear that it applies to MP scale positions in its entirety. Therefore, according to him the reference to "other positions" in clause (xiii) of paragraph 6 of the MP Policy is for positions other than MP scale positions which therefore does not apply to the Petitioner who has been appointed as per MP-I scale. The learned counsel for PSF/Respondent No. 4 submitted that a comprehensive read of the MP Policy makes it clear and apparent that clauses (xii) and (xiii) of paragraph 6 of the MP Policy do not apply to the position of Chairman or any other officer appointed by the President/Respondent No. 3 under the PSF Act and are only relevant for the appointment of such officers, servants, consultants or experts that may be appointed by the PSF/Respondent No. 4 meaning thereby its Board of Trustees pursuant to Section 16 of the PSF Act and as such he too was of the opinion that the exception contained in clause (xiii) does not apply to the Petitioner's case and the MP Policy applies to the Petitioner as Chairman of PSF/Respondent No.4 in its entirety. 19. The learned counsel for PSF/Respondent No. 4 argued that clause (ix) of Paragraph 6 of the said Policy authorizes the concerned Secretary to initiate disciplinary proceedings if he is satisfied with valid reasons described thereunder. He relied upon the definition of "Secretary" given in the Rules of Business, 1973 to submit that the Additional Secretary is included therein and as such the Impugned Show Cause Notice dated 07.08.2023 is not without jurisdiction. He clarified that the said clause only requires approval from the concerned authority in case of termination however no termination has been carried out in case of the Petitioner thus far. 20. He explained that the Impugned Show Cause Notice was issued by the Additional Secretary (Incharge) as the position of Secretary was vacant, however, the same has now been filled vide Notification dated 18.08.2023 and that the disciplinary proceedings will henceforth be carried out by the Secretary. He further submitted that the Hearing Notice referred to by the learned counsel for the Petitioner has been issued by the Joint Secretary only to communicate the date of hearing however it has been issued with the approval of the competent authority which clearly signifies that the hearing will be conducted by the competent authority itself. The learned Additional Attorney General submitted that no officer higher in rank than the position of the Chairman is
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available as the said position is of BPS-22 while the Secretary of the Ministry/Respondent No. 1 is of the same rank. He argued that as such going by the Petitioner's argument no disciplinary proceedings can ever be carried out against the Chairman in which case he can get off Scot-free despite transgressions. Similarly, it was submitted that there is no civil/government servant currently available of equivalent grade to that of the Chairman PSF/Respondent No. 4 hence the assignment of look after charge to Joint Secretary of BPS 20 grade. 21. The learned counsel for PSF/Respondent No. 4 has vehemently objected to the interpretation of the O.M. dated 09.04.2020. With regard to the Impugned Order the learned counsel submitted that the case of Federation of Pakistan vs. Saeed Ahmed Khan and others, 2016 PLC (C.S.) 48 is not relevant for the said purposes. He also submitted that mala fide cannot be established in Constitutional jurisdiction. 22. The learned Additional Attorney General relies upon Syed Asghar Ali Shah vs. Province of Sindh through Secretary Local Government Department Govt. of Sindh at Karachi and 6 others, 2022 CLC 442 and Abdul Latif Mughal vs. Govt of Sindh and others, 2020 PLC (CS) Note 9 wherein it has been held that suspension is not a punishment as it does not decide the matter finally and that suspension is interim in nature with the object of restraining the officer concerned from influencing the outcome of inquiry proceedings. 23. Additionally, the learned counsel for PSF/Respondent No. 4 has relied upon Pakistan Electric Power Company vs. Syed Salahuddin and others, 2022 SCMR 991 and on unreported judgments passed in Commissioner Inland Revenue vs. M/s RYK Mills, Civil Petitions No. 1842-L and 1843-L of 2022 and Muhammad Ayub Khan Sanjrani vs. Sindh Health Care Commission & others, Suit No. 379/2019. Arguments in rebuttal on behalf of the Petitioner: 24. While exercising her right of rebuttal the learned counsel for the Petitioner referred to the advertisement issued by the Respondents for the post of Chairman of PSF/Respondent No. 4 and highlighted that nowhere does it mention that the position will be governed by the MP Policy. She highlighted that MP-1 has been mentioned only in the box pertaining to Pay and Allowances. She further submitted that in case the appointing authority changed its mind about the governing terms and conditions then the entire process of recruitment including issuance of the advertisement would have to be repeated. She submitted that no such change of mind is reflected from the Notification dated 28.12.2020 as it too does not provide for application of the MP Policy rather only mentions that appointment is as per MP-I scale which according to the learned counsel clearly signifies that the MP Scales are being used as benchmark for the emoluments to be granted for the position of Chairman of PSF/Respondent No. 4 and no other provision of the MP Policy can be applied thereto by virtue of clause (xiii) of paragraph 6 of the MP Policy without prejudice to her argument that the policy does not apply to the Chairman PSF/Respondent No. 4 at all. She submitted that Gazette Notification dated 28.12.2020 being prior in time governs the relationship between PSF/Respondent No. 4 and the Petitioner. Whereas, the Gazette Notification dated 01-01-2021 is merely a notification of appointment to inform the public. She also referred to the terms and conditions of the Petitioner's appointment as per Letter dated 16.06.2021, which do not refer to the MP Policy. 25. While addressing the treatment meted out to the predecessor of the Petitioner she submitted that it was not a correct decision and as such cannot be made binding upon the Petitioner who cannot be penalized nor saddled with the burden of an incorrect decision simply because the predecessor chose not to challenge the same. She emphasized that the President's failure to exercise jurisdiction vested in him is also a violation of the law and that the Petitioner would not challenge a termination simpliciter by the President/Respondent No. 3 but is challenging the initiation of disciplinary proceedings instituted against him without jurisdiction and pursuant to a
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policy which does not apply to him. The learned counsel explained that there is no question of the Petitioner getting away with anything Scot-free as his appointment can be terminated by the President/Respondent No. 3. She submitted that in this case malafide is apparent from the documentary evidence which shows that a displeasure notice was sent to the Petitioner on account of his complaints to the President/Respondent No.3 in respect of the Ministry/Respondent No. 1's interference in the matter of PSF/Respondent No.4. She also submitted that the person who has been given look after charge while the Petitioner has been sent on forced leave is not a scientist and the fact that no other person of requisite ranking is available for appointment is not sufficient to entrust the affairs of an autonomous body such as PSF/Respondent No.4 in the hands of an ineligible person. Lastly, she challenged the appointment of the purported learned counsel for PSF/Respondent No.4 as there is no authority letter available on record to support his Vakalatnama. 26. I have heard the learned counsels for the parties and have also perused the record. Maintainability: 27. The learned counsel for PSF/Respondent No. 4 vehemently objected to the maintainability of the instant petition on the ground…
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