Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2025 PLJ 70. In this matter between Ashba Kamran and Federation of Pakistan through Secretary to the JUDGMENT, 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Asim Hafeez Title:Ashba Kamran vs Federation of Pakistan through Secretary to the

JUDGMENT

Reported As: 2024 LHC 3733, 2024 PLC (C.S.) 1325, PLJ 2025 Lahore 70 Result: Petition Allowed Judgment

JUDGMENT ASIM HAFEEZ, J. Petitioner, based on the information provided, seeks exercise of jurisdiction under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 (the 'Constitution') to inquire and adjudicate the question that under what `authority of law" respondent No.6 has been appointed, and is currently holding the office of Chairman, National Database and Registration Authority (the 'Office'). National Database and Registration Authority (the 'Authority') is established in terms of section 3 of the National Database and Registration Authority Ordinance, 2000 ('Ordinance, 2000'). Respondent No.6, ranked Lieutenant General in the Pakistan Army, is called upon to substantiate title to the Office, claimed, which is a public office for all intent and purposes. Notices under Order XXVII-A of Code of Civil Procedure, 1908 were issued. Petition was admitted for regular hearing in wake of legal issues involved. Written statements were submitted by respondent No.5 - Ministry of Interior - and respondent No.6 - [claimant of title to the Office]. 2. Factual narration: Facts alleged, statedly leading to the change of guard at the Authority, claimed contiguity to the news item published in the Dawn newspaper of May 6, 2023, disclosing factum of initiation of criminal proceedings against some of the officials of the Authority [NADRA], accused of accessing data of the Chief of Army Staff (COAS) without authorization - Copy of news item is attached as Annexure-A. In follow-up thereto, another news item appeared in the Dawn newspaper of June 14, 2023, reporting an unanticipated resignation by ex-Chairman, NADRA, Tariq Malik. Copy of the news item is attached as Annexure-B. One, Mr. Asad Raza Gillani, took charge as

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Acting Chairman of the Authority. In paragraph 11 of the petition reference was made to some advertisement of 06.07.2023 - [captioned: Job Advertisement for the post of Chairman NADRA ]. Factum of advertisement was not disputed; nonetheless no further action was taken pursuant thereto. Shortly thereafter, the Caretaker Government introduced Rule-7A in the Appointment and Emoluments of Chairman and Members Rules, 2020 (the 'Rules, 2020'). Rule-7A reads as, "7A. Secondment or deputation. -Notwithstanding anything contained in these rules, the Federal Government may, when it considers expedient in national interest, appoint any serving officer of the service of Pakistan, not below the rank and status of BPS-21, as Chairman on secondment or deputation for such term or terms as provided for in sub-section (5) of section 3 of the Ordinance." 3. It transpired from the contents of the written statement by Respondent No.5, that selection committee considered officers, comprising of the list of officers provided by the Establishment Division and Interior Division, and recommended three officers for the consideration of Caretaker Government. Caretaker Government approved the appointment of respondent No.6, notified through the Notification of 02.10.2023, contents thereof are reproduced hereunder. GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR ***** No. 10/1/2023-NADRA Islamabad, the 02ndOctober, 2023 NOTIFICATION In exercise of powers conferred under section 3(3) of the National Database and Registration Authority (NADRA) Ordinance 2000, read with Rule 7A of NADRA (Appointment and Emoluments of Chairman and Members) Rules, 2020, the Federal Government has been pleased to appoint Lieutenant General Muhammad Munir Afsar as Chairman NADRA in terms of Section 3(5) of NADRA Ordinance, 2000, with immediate effect and until further orders. 2. Terms and conditions of his appointment including emoluments will be determined separately. -S/d- Dr. Mudassar Rehman Section Officer (NADRA) 4. As a consequence of General Elections of 8th February 2024, incumbent government assumed office, which proceeded to confirm the insertion of Rule-7A in the Rules, 2020 and appointment of respondent No.6 through two separate Notifications, both dated 28.03.2024, texts whereof are reproduced hereunder, respectively. (1) GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR ***** No. 1/1/2023-NADRA Islamabad, the 28th March, 2024 NOTIFICATION In furtherance of this Ministry's Notification dated 13th September 2023, the Federal Government is pleased to confirm the insertion of Rule 7A in NADRA (Appointment and Emoluments of Chairman and Members) Rules, 2020. In the aforesaid Rules, after rule 7, the following new rule shall be inserted, namely:- "7A. Secondment or deputation. -Notwithstanding anything contained in these rules, the Federal Government may, when it considers expedient in national interest, appoint any serving officer of the service of Pakistan, not below the rank and status of BPS-21, as Chairman on secondment or deputation for such term or terms as provided for in sub-section (S) of section 3 of the Ordinance." -S/d- Dr. Mudassar Rehman Section Officer (NADRA)

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(2) GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR ********* No. 10/1/2023-NADRA Islamabad, the 28th March, 2024 NOTIFICATION In furtherance of this Ministry's Notification dated 2nd October 2023, the Federal Government has been pleased to confirm the appointment of PA-29170 Lieutenant General Muhammad Munir Afsar, HI(M), as Chairman NADRA for a term of three years from the date of his original appointment, as outlined in section 3(5) of the NADRA Ordinance, 2000. -S/d- Dr. Mudassar Rehman Section Officer (NADRA) 5. Fundamentally, title to the Office, claimed by respondent No.6 while banking upon Rule-7A of the Rules 2020, is subject of adjudication. 6. Petitioner submits that Federal Government lacked authority to appoint a serving officer to the Office under the Ordinance, 2000. Further submits that Rule-7A of the Rules, 2020 is inconsistent with the mandate of the enactment, contravenes the constitutional principle of equality of the citizens and abrogates guaranteed fundamental rights. Adds that incumbent government merely rubber-stamped the appointment, unlawfully made by the Caretaker Government without adhering to the requirements of conducting fair and competitive process for appointment by inviting potential aspirants. 7. Learned Additional Attorney General submits that question of vires of Rule-7A of the Rules, 2020 and plea of contravention of fundamental rights cannot be adjudged in exercise of quo-warranto jurisdiction, when neither the petitioner did compete for the Office, and nor aspirant thereto. Further submits that Federal Government is competent to undertake rule-making exercise under the mandate of section 44 of the Ordinance, 2000, which authority inter alia included the power to amend the rules. Submits that appointment was made under Rule-7A, ibid, and when discretion was exercised in terms thereof, there was no requirement of issuing a public advertisement or to undertake competitive recruitment process. Adds that appointment was confirmed in national interest, and to justify appointment certain documents were provided - [privilege is claimed in respect of the documents provided]. 8. Respondent No.6, represented through independent counsel, claimed that qualifications prescribed under sub-section (7) of section 3 of the Ordinance, 2000 are met and legal authority, to hold the Office, is drawn from Rule-7A of the Rules, 2020. Matter heard: Opinion of the Court: 9. Challenge thrown to the claim to the Office is two-faceted; firstly, it underlines illegality committed by the Caretaker Government; and secondly, the authority of incumbent government, to confirm appointment upon ratifying Rule-7A of the Rules, 2020, is questioned in the context of delegation under the Ordinance, 2000. 10. I now turn to deal with the first challenge. Illegality committed, in purported exercise of authority by the Caretaker Government, while amending the Rules, 2020 and appointing respondent No.6, need not be elaborated and dealt with independently, for the reason that incumbent government has accepted and acknowledged the baggage of appointment, which in fact endorsed it by confirming the insertion of Rule-7A in the Rules, 2020 and also confirmed the appointment. Hence, cause of action survives. 11. Is Court competent to assume jurisdiction and what shall be the scope of inquiry to determine the claim to the Office. Essentially, the scope and extent of adjudication involves determination of legality of the claim to hold the Office and an intertwined issue, that whether the authority purportedly exercised by the Federal Government is within the bounds of the Ordinance, 2000. An

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intertwined issue is in fact an elephant in the room. There is no disagreement over the power of the Federal Government to appoint the Chairman of the Authority, which is an essential component of delegated authority but subjected to the constraints prescribed under the Ordinance, 2000 - primary enactment. Notwithstanding, delegation of rule-making authority, the appointment must conform to the dictates of the primary enactment. Reference to primary enactment is indispensable in the context that Federal Government claimed that the appointment is confirmed under Rule-7A of the Rules, 2020, which provided for appointment of respondent No.6 in national interest. Lawfulness of this purported exercise of delegated authority has to be tested through the prism of the Ordinance, 2000. 12. The extent of the power / jurisdiction of the Court, to determine the legality of delegated authority exercised by the Federal Government is subject to frontal attack on the ground that scope of "quo-warranto" jurisdiction is limited. In these circumstances, the scope of jurisdiction, conferred under Article 199(1)(b)(ii) of the Constitution, needs a sharper focus. Though not explicitly stated but the jurisdiction conferred under Article 199(1)(b)(ii) of the Constitution, is, quintessentially, `quo-warranto' jurisdiction. Boxes, defining the ingredients required for assumption of jurisdiction, are all ticked; that is that requisite information is laid before the Court, whereby challenge to the title to the Office is raised; Office in question, having a defined and extendable tenure, possesses all attributes of a substantive position / post and qualifies to be a public office. And, even otherwise, it is not claimed that appointment under reference is either provisional or a stopgap arrangement. 13. Jurisprudentially construed, through judicial pronouncements, and contextually examined, jurisdiction conferred under Article 199(1)(b)(ii) of the Constitution essentially empowers the court to inquire into and determine the legality or otherwise of the claim to the public office, which inter alia includes power to determine claim of competence-cum-eligibility of the holder of the Office [the "eligibility test"]. And the jurisdiction extends and enables the Court to test that whether the appointing authority possessed the competence to make the appointment under challenge ["competence test"]. In the context of determination of competence test, it is a sheer misconception that merely upon referring to Rule-7A of the Rules, 2020, the jurisdiction, otherwise available to inquire into the allegation of invalid appointment, would cease to be available. Power to adjudge and determine the scope of delegated authority forms an integral part of the "quo warranto" jurisdiction, which entitles the court to reject alleged claim to the public office, if it reaches conclusion that exercise of delegated authority is beyond the scope of delegation or otherwise inconsistent with the primary enactment. Use of specific expression "authority of law", in Article 199(1)(b)(ii) of the Constitution, is the preface of the "quo warranto" jurisdiction. Specificity intended requires due deference. Any confusion must be dispelled by highlighting that constitutionality of any provision of the Ordinance, 2000 is not under challenge but question of legality of the delegated authority exercised. Settlement of this delicate, but critical question, is vital. 14. First, I deal with the eligibility test. Notably, appointment was confirmed by drawing strength from Rule-7A of the Rules, 2020. It is not disputed that appointment under reference is an instance of direct appointment, which was not advertised; no qualification-based evaluation was conducted, and no exercise to ascertain relative suitability of potential-cum-eligible aspirants was carried out. A non-advertised and competitive deficient appointment is otherwise held contrary to the mandate of Article 18 of the Constitution. Reference is made to the case of "MUSHTAQ AHMAD MOHAL and others Vs. Honourable Lahore High Court, Lahore and others" (1997 SCMR 1043), relevant paragraphs are reproduced hereunder, 17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public authorities, either initial or ad hoc or regular,

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without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions. 20. We may observe that Article 27 of the Constitution is to be read in conjunction with inter alia Articles 2A, 18 and 25 of the Constitution. Aforesaid Articles 2A and 18 of the Constitution have already been referred to hereinabove. Whereas above Article 25 of the Constitution guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. Inter alia the above Articles of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice. [Emphasis supplied] Ratio laid is, recently, re-affirmed in the case of "ZAFARAN KHAN and others. Vs. NIZAM ULLAH and others." (PLD 2023 SC 371), portion from paragraph 7 thereof is reproduced hereunder, 7. Now we have to consider whether the precedents of this Court, relied upon by the High Court in its judgment, are relevant to the moot question. To answer this point it is necessary to read all those precedents, and upon their reading, we found that in all of them the appointments were declared illegal on the ground that they were made through backdoor, as neither the vacancies were advertised, applications were not invited, nor the formalities of the rules were fulfilled, but here we are not confronted with such a situation, and thus to provide an answer to the main question under consideration, reliance on precedents was inappropriate. Lest anyone misunderstand this, we make it clear that the appointment to any post under the government can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. Any appointment made on a post under the government without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Articles 18 and 27 of the Constitution" [Emphasis supplied] Eligibility test has no relevance since appointment was made in national interest and not through competitive recruitment process. 15. Now, I discuss the competence test, in wake of jurisdictional objection that legality of exercise of delegated authority cannot be tested under the `quo warranto' jurisdiction. This precise objection is addressed in terms of the ratio of decision in the case of `JAWAD AHMAD MIR v. Prof. Dr. IMTIAZ ALI KHAN, VICE CHANCELLOR, UNIVERSITY OF SWABI, DISTRICT SWABI, KHYBER PAKHTUNKHWA and others' (2023 SCMR 162), relevant portions from paragraphs 8 and 9 of the decision are reproduced hereunder, 8. The writ of quo warranto is in the nature of setting forth an information before the High Court against a person who claimed and usurped an office, franchise or liberty. The rationality of the writ of quo warranto is to settle the legality of the holder of a statutory or Constitutional office and decide whether he was holding such public office in accordance with law or against the law. The writ of quo warranto can be instituted by a person though he may not come within the meaning of words "aggrieved person". For the purpose of maintaining a writ of quo warranto there is no requirement of an aggrieved person, and a whistle blower need not to be personally aggrieved in

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the strict sense and may relay the information to the court to enquire from the person holding public office. The purpose of the writ of quo warranto is to pose a question to the holder of a public office: "where is your warrant of appointment by which you are holding this office?" In the writ of quo warranto no special kind of interest in the relator is needed, nor is it necessary to explain which of his specific legal rights is infringed. It is enough for this issue that the relator is a member of the public and acts bona fide. This writ is more in the nature of public interest litigation where undoing of a wrong or vindication of a right is sought by an individual for himself, or for the good of the society, or as a matter of principle. The conditions necessary for the issuance of a writ of quo warranto are that the office must be public and created by a statute or Constitution itself; the office must be a substantive one and not merely the function of an employment of a servant at the will during the pleasure of others; there has been contravention of the Constitution or a statute or statutory instrument by appointing such person to that office. The essential grounds for issuing a writ of quo warranto are that the holder of the post does not possess the prescribed qualification; the appointing authority is not the competent authority to make the appointment and that the procedure prescribed by law has not been followed. The burden of proof is then upon the appointee to demonstrate that his appointment is in accordance with the law and rules. It is clear that before a person can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by a usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. 9. In our jurisdiction, compliant with the dictum laid down by this Court in various judgments, such as the case of Masudul Hassan v. Khadim Hussain and another (PLD 1963 SC 203), it was held that writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended to enquire by what authority he supported his claim in order that the right to the office may be determined. In the case of Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and others (2000 SCMR 1720), this Court held that in the writ of quo warranto, under Article 199 of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority he is holding the said office. Whereas in the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52), it was held that the object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. For issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. Likewise, in the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), this Court held that Constitutional petition in the nature of a writ of quo warranto was maintainable against a Member of the Majlis-e-Shoora (Parliament), if he was disqualified or did not possess or had lost his qualification, in such behalf. Power to disqualify a member in cases where for some reason he escaped disqualification at the time of filing his/her nomination papers but such fact/event was discovered subsequently, could, in appropriate cases and subject to availability of admitted facts or irrefutable evidence be exercised by the High Court under Article 199 and by the Supreme Court under Article 184(3) of the Constitution." Inquiry for deciding the question of usurpation of the Office empowers the court to test that if the appointment is in accordance with the law. In the case of "University of Mysore v. C.D. Govinda Rao (AIR 1965 SC 491) principles prescribing requisite conditions, for assuming "quo warranto' jurisdiction, were explained in paragraph 7, portion whereof is reproduced hereunder,

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........... `It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by a usurper without legal authority, and that necessarily leads to the enquiry as to whether appointment of the said alleged usurper has been made in accordance with the law or not'. [Emphasis supplied] The extent of the inquiry to be undertaken in exercise of quo warranto jurisdiction has been explained in the case of "Malik NAWAB SHER v. Ch. MUNEER AHMAD and others' (2013 SCMR 1035), portion of paragraph 11 is reproduced hereunder, ....`In the case of PAKISTAN TOBACCO BOARD v. TAHIR RAZA (2007 SCMR 97) it was held that in writ of quo warranto the jurisdiction of the Court was primarily inquisitorial and not adversarial and thus the Court could undertake such inquiry as it may deem necessary in the facts and circumstances of the case, including the examination of the entire record and such exercise can even be done suo motu even the intension of the High Court is not drawn by the party concern." 16. The scope of quo warranto' jurisdiction is construed specifically in the context of the law applicable in particular jurisdiction. In Article 226 of the Constitution of India, expression, "quo warranto' is employed, and in our Constitution jurisdiction character of quo warranto' is encapsulated in the expression "authority of law". Notwithstanding variation in the scope of jurisdiction and use of varied expressions, there is an underlying commonality, i.e., that either be it an act of the state officer or question of usurpation of the Office, the exercise of authority, to be valid and enforceable, must conform to the law and the terms of delegation. Absence of delegated authority is akin to exercise of authority in excess of delegation, and both are amenable to test through "quo warranto' remedy in various jurisdictions. For understanding the scope of the expression authority of law', it is expedient to discuss decisions from foreign jurisdiction. I lay my hands on a judgment of the Supreme Court of Florida, where quo warranto jurisdiction was exercised, instead of directing the petitioner, therein, to resort to seek remedy through declaratory judgment action, in case No. SC07-2154, titled "Florida House of Representatives, et al. v. The Honourable Charles J. CRIST, Jr., etc. (999 So.2d 601 (2008), where the act of the Governor of the State, to negotiate compact with Indian Tribes, was held invalid on the premise of improper exercise of powers, in absence of any authorization by the legislature. Ratio of the decision in Florida House of Representatives v. Christ', was reaffirmed in the case No.SC2023-1333, titled "WEST FLAGLER ASSOCIATES, LTD., et al., v. RON D. DESANTIS etc., et al. (573 F.Supp.3d 260 (D.D.C.2021), wherein relief of quo warranto was denied on the premise that legislature had ratified the power of the Governor to execute the compact, the reasoning extended to distinguishing the case of…

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