Full Judgment Text & Judicial Ruling

2024 P L C (C.S.) 1325 [Lahore High Court] Before Asim Hafeez, J ASHBA KAMRAN Versus FEDERATION OF PAKISTAN through Secretary to the President, President s Secretariat, Islamabad and others Writ Petition No.12091 of 2024, decided on 6th September, 2024. (a) Constitution of Pakistan--- ----Art. 199(1)(b)(ii)---Constitutional petition---Quo warranto---Scope--- Eligibility test and Competence test ---Jurisdiction conferred under Art. 199(1)(b)(ii) of the Constitution essentially empowers Court to inquire into and determine legality or otherwise of claim to public office, which inter alia includes power to determine claim of competence-cum-eligibility of holder of the Office [the eligibility test ]---Jurisdiction extends and enables the Court to test whether appointing authority possessed competence to make appointment under challenge [ competence test ]. (b) Precedent--- ----Foreign judgments---Applicability---Foreign judgments have persuasive / non-binding effect but their analysis provides effective tool for comprehending the proposition of law and assists in interpreting legal concepts / jurisdictional issues. (c) Constitution of Pakistan--- ----Art. 199(1)(b)(ii)---Expression authority of law ---Connotation---Expression authority of law means official right or permission to act, specially to act legally on another s behalf by virtue of authority, derived from, or granted by, or under the prevalent legal system aggregate of legislation, judicial principles and accepted legal principles. (d) National Database and Registration Authority Ordinance (VIII of 2000)--- ----Ss.3 & 8---National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020, R. 7A---Constitution of Pakistan, Art. 199---Constitutional petition---Writ of quo warranto, issuance of---National interest---Authority of law---Scope---Petitioner assailed appointment of respondent as Chairman National Database and Registration Authority on the plea that Federal Government lacked authority under National Database and Registration Authority Ordinance, 2000, to appoint a serving officer of Armed Forces as Chairman---Plea raised by authorities was that respondent was appointed in national interest---Validity---For the purposes of assumption and exercise of quo warranto jurisdiction scope of inquiry could not be extended to include determination of authority / competence of legislature or for that matter embarking upon examining vires / constitutionality of law--- Federal Government under S.3(3) of National Database and Registration Authority Ordinance, 2000, appoints Chairman and Members to the Authority---Wisdom of legislature could not be adjudged in guise of quo warranto jurisdiction to delegate such authority to delegatee---Provision of R.7A of National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020, is a specie of delegated legislative authority subordinate to the parent enactment---Legality and extent of exercise of delegated authority can be adjudged under quo warranto action---High Court was empowered to inquire and determine exercise of authority by the Executive / Federal Government, in the guise of R. 7A of National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020---Such close-door approach entailed reduced competitiveness, exacerbated social inequalities and had curtailed professional opportunities, which resulted in intense brain-drain--- Seeking refuge behind plea of national interest was non justiciable, which in fact had violated principle of separation of powers, where in fact the Executive had exceeded or over-stepped delegated authority and proceeded to introduce an incompatible rule vis- -vis primary enactment---Claim of national interest failed as the same was un-plausible---Discretion was necessarily needed to be exercised to end usurpation of the office---High Court declared act of confirming appointment of respondent as unauthorized, inconsistent with the (parent) enactment and without requisite authority of law ---High Court further declared that the appointment, confirmation and continuing holding of the office of Chairman NADRA by respondent was without authority of law---Constitutional petition was allowed in circumstances. Mushtaq Ahmad Mohal and others v. Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Zafaran Khan and others v. Nizam Ullah and others PLD 2023 SC 371; Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan, Vice-Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others 2023 SCMR 162; University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491; Malik Nawab Sher v. Ch. Muneer Ahmad and others 2013 SCMR 1035; Florida House of Representatives, et al. v. The Honourable Charles J. Crist, Jr., etc. (999 So.2d 601 (2008); West Flagler Associates, Ltd., et al., v. RON D. DESANTIS etc., et al. 573 F.Supp.3d 260 (D.D.C. 2021); Whiley v. Scott, 79 So.3d 702 (Fla.2011); Elvin L. Martinez, Etc. v. Bob Martinez, Etc. 545 So.2d 1338 (1989); Black s Law Dictionary 11th Edition Bryan A. Garner; Pir Illahi Baksh v. Muhammad Ayoob Khuhro PLD 1956 Sindh 101; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Waris Meah v. The State and another PLD 1957 SC (PAK) 157 and Jibendra Kishore and others v. The Province of East Pakistan PLD 1957 SC Pak 9 rel. (e) Maxim--- ---- Expressio unius est exclusio alterius ---Meaning---Expression of one thing implies the exclusion of others---Where a statute has conferred a power to do an act and prescribed a mechanism for exercise of that power, such power cannot be exercised for the purposes of performing the act by adopting a different method, other than what has been prescribed. Taylor v. Taylor 1875 (1) Ch D 426 and GVK Industries Ltd. and another v. Income Tax Officer and another 2011 (4) SCC 36 rel. Petitioner in person. For Respondents. Mirza Nasar Ahmad, Additional Attorney General for Pakistan. Asad Ali Bajwa, Deputy Attorney General for Pakistan. Ch. Imtiaz Ellahi, Deputy Attorney General for Pakistan. Mohsin Raza, Ch. Najam-ul-Hassan and Ijaz Rehmat Basra, Assistant Attorney General for Pakistan. Imran Muhammad Naeem, Zeeshan Ghani, Munib Cheema, Hamid Rafique and Jamail Khan for Respondent No.6 / NADRA. Date of hearing: 11th July, 2024. 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 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 subsection (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 02nd October, 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 subsection (5) of section 3 of the Ordinance. -S/d- Dr. Mudassar Rehman Section Officer (NADRA) (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 subsection (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 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 v. 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, 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 v. 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 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…

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