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Petitioner: BALOCHISTAN IRRIGATION AND POWER EMPLOYEES UNION VS Respondent: CHAIRMAN, BALOCHISTAN DEVELOPMENT AUTHORITYHonorable Justice Qazi Faez Isa and Naeem Akhtar AfghanMuhammad Riaz Ahmed,Syed Ayaz Zahoor
2013 P L C (C.S.) 1417
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J
BALOCHISTAN IRRIGATION AND POWER EMPLOYEES' UNION through President and another
Versus
CHAIRMAN, BALOCHISTAN DEVELOPMENT AUTHORITY and 4 others
Constitutional Petition No.359 of 2009, decided on 31st January, 2013.
Balochistan Civil Servants Act (IX of 1974)---
----S. 14---Balochistan Development Authority Act (X of 1974), S.16---Constitution of Pakistan Art. 199---Quo warranto, writ of---Posts of Chairman, Balochistan Development Authority and Member Technical of Chief Minister's Inspection Team---Re-employment of respondent as the Chairman by his own order after attaining age of superannuation---Validity---Record showed statement of respondent to the effect that though he could not issue such order in his own favour, but he did so---Nothing on record to show that either respondent or any one else had rescinded such order of his re-employment as Chairman---Such re-employment of respondent after attaining age of superannuation was violative of S.14 of Balochistan Civil Servants Act, 1974---Summary forward to Chief Minister neither disclosed necessity of re-employment of respondent nor stated that same was in public interest---Appointment as Chairman could be made under law with prior approval of authority next above appointing authority, but respondent had violated the law---Subsequent appointment of respondent as Member was also illegal as nothing was on record to justify his such appointment in terms of S.14(1) of Balochistan Civil Servants Act, 1974---Chief Secretary and three Provincial Secretaries had not supported re-employment of respondent, but Chief Minister had preferred the opinion of respondent---Chief Minister had no power under Rules of Business to substitute his personal opinion for professional opinion of such Secretaries and Chief Secretary---High Court set aside re-employment of respondent as Chairman and Member of Balochistan Development Authority for being illegal.
Chamber of Commerce and Industry v. Director-General QDA PLD 2012 Quetta 31; Masood-ul-Hassan v. Khadim Hussain PLD 1963 SC 203; Manzoor Hussain Gilani v. Sain Mullah PLD 1993 SC (AJ&K) 12; Parameswaran v. State Prosecutor AIR 1951 Travancore-Cochin 45; Hamdullah v. Saifullah Khan PLD 2007 SC 52; Fazl-e-Haq, Accountant-General, West Pakistan v. The State PLD 1960 SC 295; Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822; Pakistan v. Abdul Hamid PLD 1961 SC 105; Khan Faizullah Khan v. Government of Pakistan PLD 1974 SC 291; Supreme Court Bar Association v. Federation of Pakistan PLD 2011 SC 273 and Muhammad Riaz Akhtar v. Secretary to Government of Punjab 2011 SCMR 588 ref.
Muhammad Riaz Ahmed for Petitioner.
Syed Ayaz Zahoor for Respondent No.2.
H. Shakil Ahmed, Ayaz Sawati and Shai Haq, Asstt. A.-G. for Official Respondents.
Date of hearing: 7th November, 2012.
JUDGMENT
QAZI FAEZ ISA, C.J.--- The petitioner No.1 is the Balochistan Irrigation and Power Employees Union, Quetta ("the said Union") and has filed the petition through its President, whereas the petitioner No.2 is the General Secretary of the Union. The said Union was registered on 19th of August, 1974 under the Industrial Relations Ordinance, 1969. The petitioners state that the Irrigation and Power Department of the Government of Balochistan has carried out various projects including construction of dams, tube-wells and other matters relating to irrigation. That vide notification dated 31st January, 2001, the Government of Balochistan established a separate Water Resources, Planning, Development and Monitoring Directorate (hereinafter the "Directorate of Water Resources") to, "function under control of Irrigation and Power Department Balochistan" vide Notification dated 6th February, 2001. There are more than 800 persons employed by the Directorate of Water Resources and it has more than 30 drilling machines for drilling of tube-wells as well as other equipments, and has implemented different Projects entrusted to it by the Government of Balochistan. It has a success rate of 90% in respect of the tube-wells drilled whereas private drillers have a failure rate of 90%. The petition was filed as twenty public sector tube-wells were to be drilled and developed through the Balochistan Development Authority ("BDA") instead of through the Directorate of Water Resources Directorate / Irrigation and Power Department.
2. The facts of the case are that the Prime Minister of Pakistan, vide Prime Minister's Directive No.388, approved an amount of Rs.30 million for drilling and development of twenty tube-wells in the area that fell within electoral constituency of the National Assembly (NA.267), from where Mr. Humayun Aziz Kurd was elected as a member of the National Assembly and who was appointed as a Minister in the Federal Cabinet. Mr. Humayun Aziz Kurd wrote letter dated 3rd February, 2009 to the Secretary, Irrigation Department, Government of Balochistan, "recommending the names of the following persons for installation of tube-wells", and the names of twenty persons are mentioned. The Government of Balochistan's Irrigation and Power Department wrote to the Director General of the Directorate of Water Resources to expeditiously carry out the said work, and the Directorate of Water Resources prepared a PC-1 wherein was mentioned the estimated cost of drilling and development of the said twenty tube-wells ("the said works"). However, instead of having the said works executed through the Directorate of Water Resources/Irrigation and Power Department a tender notice was published, in daily Jang of 20th May, 2009, by BDA in respect of the said works. The tender notice (translated into English from Urdu) is reproduced hereunder:---
S.No.
Works/name of schemes
Estimated amount
(1)
Muhammad Yousaf Kurd Paingao, Dasht District Mastung.
Rs. 2,176,000
(2)
Tahir Aziz Kurd Paingao, Dasht District Mastung (800 feet deep)
Rs.2,176,000
(3)
Rasheed Aziz Kurd, Darwaza Dasht District Mastung (800 feet deep)
Rs.2,176,000
(4)
Mir Abdul Samad District Mastung (800 feet deep)
Rs.2,176,000
(5)
Abdul Malik, Malikabad Dasht District Mastung (800 feet deep)
Rs.2,176,000
(6)
Muhammad Khalid Siyapusht Dasht District Mastung (800 feet deep)
Rs.2,176,000
(7)
Haji Taj Muhammad Kurd, Paingao Dasht District Mashing (800 feet deep)
Rs.2,176,000
(8)
Abdullah Theramil District Mastung (800 feet deep)
Rs.2,176,000
(9)
Muhammad Aslam Kurd, Umer Dor Dasht District Mastung (800 feet deep)
Rs.2,176,000
(10)
Saleh Muhammad Sohrab District Kalat (800 feet deep)
Rs.2,239,000
(11)
Abdul Majeed Kapato Kalan District Kalat (800 feet deep)
Rs.2,239,000
(12)
Muhammad Asim, Asimabad, District Kalat (800 feet deep)
Rs.2,239,000
(13)
Muhammad Sharif, Killi Asimabad Dhadar, District Kachi (500 feet deep)
Rs.1,528,000
(14)
Mir Nawaz Jatoi, Sunny District Kachi (500 feet deep)
Rs.1,528,000
(15)
Sardar Samandar Khan Jatoi Sunny District Kachi (500 feet deep)
Rs.1,528,000
(16)
Nawabzada Khalid Khan Magsi U/C Bareja, District Jhal Magsi (500 feet deep)
Rs.1,629,000
(17)
Nawabzada Tariq Khan Magsi U/C Bareja, District Jhal Magsi (500 feet deep)
Rs.1,629,000
(18)
Aurangzaib Alamgir Magsi U/C District Jhal Magsi (500 feet deep)
Rs.1,629,000
(19)
Muhammad Noor Baloch, U/C Gawani, Garishanal, District Khuzdar (500 feet deep)
Rs.1,581,000
(20)
Mir Majeed Abroo U/C Katthan (Ahmed Shah Pir) District Bhag (500 feet deep)
Rs.1,581,000
3. The following prayer has been made in the petition:---
"(a) the petitioners' department i.e. Directorate of Water Resources, Planning, Development and Monitoring Balochistan is entitled to award of work i.e. excavation of 20 tube wells in different areas of Balochistan;
(b) the respondent is not entitled to award work of (2) tube wells to any private drillers whose work/rate of success are not satisfactory for the purpose of excavation of tube wells etc.;
(c) That the tender notice dated 28-5-2009 has been issued without lawful authority and the same is in violation of the principles of natural justice;
(d) The respondent be directed to entrust the work to the Directorate of Water Resources, Planning, Development and Monitoring Balochistan who has already submitted PC-1 for the excavation of twenty (20) tube wells in different areas of Balochistan;
(e) to further declare that if work has been awarded to any private drillers that is of no legal effect and has been awarded illegally, without adopting due process of law and completing all the codal formalities and also liable to be cancelled;
(f) Or to pass any other order as this Hon'ble court may deem fit and proper in the circumstances of the case, which cost, in the interest of justice."
4. The petition was filed on 6th June, 2009, but BDA filed comments after almost three years on 24th April, 2012. The petitioners had also filed an application for stay (C.M.A. No.1082 of 2009) but no orders were passed thereon as we awaited the comments. That, vide order dated 28th April, 2010, BDA was specifically directed to file comments and to explain, with support of documents, the mechanism for the installation of tube-wells and whether permission had been obtained from competent authority before carrying out such work. The order sheet of 24th August, 2010 reveals that the learned Additional Advocate-General complained that despite writing several letters to BDA for providing comments the same were not been provided. On 20th December, 2011 the following order was passed:---
"This petition has been filed on the ground that the work of the Balochistan Irrigation and Power Department has been ordered to be executed through the Balochistan Development Authority (BDA).
Learned counsel for the BDA is directed to place on record the fresh appointment letter of the Chairman, BDA, after expiry of his earlier tenure and also submit reply to the following queries:
(i) Whether the BDA is authorized to execute the works as per the Balochistan Development Act, 1974?
(ii) What is detail of the employees with their skills and expertise, if any, for the implementation of the irrigation works?
(iii) What is the mechanism of managing/maintaining the works by the BDA after its completion? Any other information necessary be also submitted?
The BDA should also explain the detail of assigned works pertaining to the execution of works of the different departments.
The learned Additional Advocate-General to submit report as to how and under which authority, the Planning and Development Department (P&D) assigned the allocation of the works pertaining to different departments to the BDA and what is the criteria of maintaining the works?
The matter is adjourned to be fixed in the second week of March, 2012."
5. On the next date of hearing, i.e. 13th March, 2012, the learned Additional Advocate-General again complained that BDA had not provided comments. Consequently, it was ordered that if comments are not filed and order dated 20th December, 2011 is not complied with the Chairman BDA to be present in court along with his explanation. BDA eventually filed comments on 24th April, 2012, wherein it was stated that the Finance Department of the Government of Balochistan had authorized an amount of Rs.38,934,000 (Rupees thirty eight million, nine hundred and thirty four thousand) for BDA to be paid "from the Provincial Consolidated Funds" for the said works. It was further stated that after receiving the said money BDA invited tenders through advertisement published in daily Jang dated 28th May, 2009 and that the said works had been completed, however, without providing any details or particulars of the completion of the said works. The comments were filed under the signature of Mr. Naseer Ahmed Baloch, Chairman BDA, but at the relevant time Mr. Qambrani was Chairman BDA. BDA was arrayed as respondent No.1 through its Chairman, and the non-fling of comments by BDA and non-compliance of specific directions of the court resulted in certain facts coming to light, including that Mr. Qambrani had reached the age of superannuation on 20th October, 2011, but continued in the position of Chairman BDA. In this regard Mr. Qambrani had issued an "order" dated 27th October, 2011 (annexure J to the reply filed by Mr. Qambrani) in his own favour, reproduced hereunder:---
"ORDER
NO.BDA/HQs/Admn(Per)/2001. With the prior approval of the competent authority and in order to compensate Mr. Saadat Anwar Qambrani (C&W/B-20), presently posted as Chairman Balochistan Development Authority, is allowed to serve the Government of Balochistan for the period from 1st November, 2011 to 19th October, 2014 (both days inclusive), in lieu of the period from 17th November, 2000 to 5th November, 2003 when he remained out of active Government service.
2. No pensionery [sic] benefits beyond the date of his superannuation shall be admissible to him.
Saadat Anwar Qambrani
Chairman"
And on the same day (27th October, 2011) that he had appointed himself Mr. Qambrani noted (annexure 'V' to the reply filed by him) that he had, "resumed charge of the post of Chairman B.D.A., as against ex-cadre post under BDA Act, 1974, on 1st November, 2011, with a view to be compensated for the period from 17-11-2000 to 5-11-2003 when the undersigned remained out of Government service".
6. That BDA was tardy in the filing of comments and had disobeyed the directions of the court to do so. BDA is headed by its Chairman who is responsible for the proper conduct of the affairs of BDA. Mr. Qambrani had held the post of Chairman at the material time and had re-employed himself, we therefore issued notice to him vide order dated 2nd April 2012, relevant portion thereof is reproduced hereunder:--
"Under such circumstances, before proceeding further with the matter and as Mr. Saadat Anwar Qambrani is not before us, it would be appropriate to issue notice to Mr. Saadat Anwar Qambrani to show the legality of the order issued by himself in his own favour. We also call upon the learned Additional Advocate General to assist us on the question whether a person can pass an order in his own favour and whether the said order was competently issued having not been issued with the approval of the Chief Secretary, rather contrary to his refusal. Learned Additional Advocate General should also assist us on the powers if any vesting in the Hon'ble Chief Minister and whether the order of the Chief Secretary can be disregarded by him, which pertains to the matter of a civil servant and whether the Chief Minister is competent to pass an order in contravention of the applicable law, rules and regulations. Since we have been informed that Mr. Saadat Anwar Qambrani continues to hold a post after his retirement the learned Additional Advocate-General should also assist us as to under what provision a retired government servant can be called to continue to provide services of a civil servant."
Pursuant to the aforesaid order Mr. Qambrani appeared before us on 25th April, 2012 and stated that he now holds the office of Member Technical of the Chief Minister's Inspection Team ("CMIT"). He however did not explain when he had relinquished the post of Chairman. Since Members of the Chief Minister's Inspection Team are serving civil servants, we put Mr. Qambrani on "notice in writ of quo warranto as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation". The following relevant extracts from the said order are reproduced hereunder:---
"Learned Advocate-General has produced the personal file of Mr. Saadat Anwar Qambrani. Mr. Saadat Anwar Qambrani is present and states that he is presently holding the post of BPS-20 as Technical Member, CMIT, and that he attained the age of superannuation on October 31, 2011."
"Learned A.-G. further stated that Mr. Saadat Anwar Qambrani should be put on notice in writ of quo warranto, as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation. We agree with the suggestion of learned A.-G. Mr. Saadat Anwar Qambrani, who is present before us, is put on notice as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation. As Mr. Saadat Anwar Qambrani is put on notice he may file reply/counter affidavit."
7. Syed Ayaz Zahoor, Advocate filed his Vakalatnama on 9th May, 2012 and sought time to file reply/counter-affidavit on behalf of Mr. Qambrani, however, no reply/counter-affidavit was filed by Mr. Qambrani on the next date of hearing, nor on the date of hearing after that. We were therefore constrained to restrain Mr. Qambrani from carrying out any function of the Government of Balochistan or Pakistan. In the meanwhile, Mr. Qambrani approached the Hon'ble Supreme Court, which vide order dated 15th June, 2012 was graciously pleased to direct that this case may be disposed of "preferably within a period of one month", however, we were prevented in this regard on account of the repeated adjournments that were sought. On 8th August, 2012, a date fixed as per choice of learned counsel for Mr. Qambrani, adjournment was sought on his behalf, and it was again sought on 11th September, 2012. Subsequently, on 26th September, 2012, the Government of Balochistan through Additional Chief Secretary, (P&D) and Secretary Irrigation Department were ordered to be arrayed respectively as respondents Nos.3, 4 and 5 to ensure that the view point of the Government of Balochistan, which had allocated the said works to BDA and had appointed Mr. Qambrani after his attaining the age of superannuation should not go unattended, however, the Government of Balochistan did not file any comments nor brought on record the documents in this regard to justify Mr. Qambarni's appointment and left it to the learned Assistant Advocate-General ("A.A.-G.") to justify the appointment.
8. In view of the important constitutional points involved in the petition Messrs Muhammad Aslam Chishti and Baz Muhammad Kakar, Advocates were appointed as amici curiae vide order dated 24th May, 2012, "to assist on the point whether a government servant can hold public office after attaining the age of superannuation" generally and in the context of Mr. Qambrani. We shall be deciding this and the points raised in the petition separately. Firstly, we attend to the subject matter of the petition.
9. Mr. Muhammad Riaz Ahmed, Advocate learned counsel for the petitioners restricted his arguments to the matter of the said works. Learned counsel stated that the Government of Balochistan had established the Directorate of Water Resources and it and its parent department, the Irrigation and Power Department of Balochistan, had the requisite manpower, machinery and technical know-how to carry out the said works, as demonstrated by the successful completion of many such projects in the past. He further stated that the PC-1 had also been prepared by the Directorate of Water Resources in respect of the said works, but for no rhyme or reason the said works were handed over to BDA. Such works executed through BDA also place an additional burden on the exchequer as admittedly BDA charges an additional 4% as service charge it was next contended. Learned counsel stated that the incompetence of the BDA can be gauged from the tender notice which mentioned the names of individuals rather than the area, and the same was done to benefit the said individuals and to politicize the said works for the advantage of Pakistan Peoples Party's MNA and Federal Minister, Mr. Humayun Aziz Kurd. He stated that the tender notice should not have mentioned the name of any individual as the said works were being paid for by the public. The tender notice was published on 28th May, 2009 and the date for obtaining of tender form was till 1st June, 2009, and tenders were to be opened on June, 2009 at 12-30 p.m. which, as per learned counsel, was insufficient time and that the entire exercise was carried out with a view to benefit certain predetermined parties. He stated that the private contractors/drillers do not possess proper drilling machinery nor have requisite qualification or experience and are known to use substandard material and tube-wells drilled and developed by them either do not work or are not long lasting. He further said that there is no proof that the said works had been undertaken and completed and who are enjoying the benefit thereof.
10. Messrs H. Shakil Ahmed and Ayaz Swati, the learned counsel representing BDA, stated that the Government of Balochistan had decided to assign the said works to BDA and had made available Rs.38,934,000, and that the said works had been completed, therefore, no purpose will be served in declaring the same illegal or unconstitutional at this juncture. By referring to the comments filed by BDA it was stated that the Government of Balochistan had assigned several departmental works under the Public Representative Program to BDA and it is for the Government of Balochistan to determine which works BDA should carry out and BDA cannot answer for the Government of Balochistan why it had assigned the said works to BDA. Reference was also made to section 16 of the Balochistan Development Authority Act, 1974. Learned counsel controverted the allegation that the works were not given to competent private contractors. He however conceded that the tender notice ought not to have mentioned the names either of Mr. Humayun Aziz Kurd, MNA and Federal Minister nor the names of twenty individuals and instead the details of the said works and the areas of their respective execution should have been identified. Learned counsel however did not attend to the allegation as to why only three days notice for submitting of tender forms was provided nor referred to any instruction, regulation or rule to justify that such period was sufficient and reasonable. Learned counsel also did not attend to the other matters noted herein.
11. That since we were not receiving proper assistance, we summoned the Chief Secretary. Mr. Babar Yaqoob Fateh Muhammad, the Chief Secretary Balochistan, stated that the said works were assigned by the Government of Balochistan before he had assumed office and as such is not in a position to comment upon the wisdom of the same. He however stated that BDA should not be permitted to be a substitute to the Government of Balochistan, and that the role envisaged for BDA was to act as an engine of development and to attract private investment to compliment the activities of the Government of Balochistan. He stated that the People's Representative Program is part of the PSDP and members of the Provincial Assembly can spend up to Rs.50 million (Rupees fifty million) from the same. He further stated that each MPA can identify schemes of up to Rs.250 million (Rupees two hundred and fifty million). As regards the members of National Assembly and Senate the Federal Government determines the amount that is made available for schemes to be earmarked by them. Setting out the history of enabling parliamentarians to identify schemes and the amount that may be incurred in respect of such schemes, he stated that this concept was first introduced by General Zia-ul-Haq, and none of the successive governments either in the Provinces or in the Federation have abandoned his legacy, but on the contrary have increased the amounts in respect of such schemes, and that there remains very little money with the different government departments to undertake works that are required to be done. We were further informed that there is no law governing the same.
12. In view of the fact that no stay was granted with regard to the said works and the same were stated to have been undertaken and completed, it would not be appropriate to pass any order with regard to the legality thereof at this juncture. We however consider that the issue with regard to BDA carrying out the works of other government departments requires attention, and to ensure the best utilization of scarce public resources and to optimize efficiency, guidelines may appropriately be issued in the public interest. The Chief Secretary correctly pointed out that a tendency has developed in the Province to assign to BDA works of the different departments of the Government of Balochistan, which could be better undertaken by the departments themselves, and these departments are left bereft of funds, and without requisite resources cannot carry out works under their respective domains. BDA is a statutory body setup by the Balochistan Development Authority Act, 1974 as its preamble stipulates, "for the promotion of the economic and industrial development of Balochistan…
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