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Petitioner: Qazi MUSTAFA KAMAL VS Respondent: FEDERATION OF PAKISTAN throughSecretary JUDGMENT
Court Name: Islamabad High Court Judge(s): Shaukat Aziz Siddiqui Title:Qazi MUSTAFA KAMAL vs FEDERATION OF PAKISTAN throughSecretary
JUDGMENT
Reported As: PLD 2014 Islamabad 123 Result: Petition allowed Judgment JUDGMENT ' SHAUKAT AZIZ SIDDIQUI; J.---Petitioner invoked the constitutional jurisdiction of this court by way of filing the instant writ petition with the following prayer: "Under the circumstances expounded above, it is most respectfully prayed that while accepting the instant constitutional petition, the impugned Notification No,1/42/2004-E-6 dated 27-2-2014 issued by respondent No,1 and office order dated 28-2-2014 may kindly be declared null and void ab initio as respondent No,3 stands disqualified also in terms of section 97(c) of Memorandum of. Articles of Association of PTVC Limited and in violation of directions of honourable Supreme Court, Islamabad High Court, Islamabad and laws. The post of MD PTVC be re-advertised and High Powered Selection Committee may also be strengthened to select the right candidate as per directions of the Supreme Court and Islamabad High Court. Moreover, the respondent No,3 may be stopped to perform the functions and act MD PTVC being recruited through unlawful process of recruitment." ' And presented the facts as under:--- 2. That the petitioner is presently performing his duties as Director Special Assignments, Pakistan Television Corporation Ltd. ("PTVC"), Islamabad, having an experience of over 28 years in PTVC. That the respondent No,2 prepared the case for the appointment of Managing Director, PTVC and advertised the said post by inviting applications from suitable candidates as per the given qualification, experience and other terms and conditions published in the Daily Dawn dated 30-4- 2013 ("the First Advertisement"). Later on, the Respondent No,2 re-advertised the said post vide advertisement published in the Daily Jang dated 9-10-2013 ("the Second Advertisement"), whereby,
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firstly, the required academic qualifications were lowered from a Masters Degree to a Bachelors Degree in Mass Communication or Journalism, secondly, the age limit was relaxed and, thirdly, the required work experience of twenty (20) years was reduced to fifteen (15) years. It was contended that this was done purely to make the said advertisement person-specific for the benefit of respondent No,3. Subsequently, a Corrigendum was also published in the Daily Nation dated 16-10- 2013 ("Corrigendum") which amended the Second Advertisement further as follows: (a) the contractual term was revised from two (2) years to three (3) years; (b) the degrees of Bachelors in Arts and Social Sciences were added in the list of academic qualifications required for this position; (c) "written evidence" of fifteen (15) years work experience was changed to "established track record" of fifteen (15) years experience; and (d) the remuneration for this position was changed from that of an MP-1 scale to such package as may be negotiated by the parties, keeping in view the last pay drawn by the successful candidate from the private sector, without fixing any upper limit of remuneration. Thereafter, the respondent No,3 applied for the said post of MD PTVC when the stage was all set for him, in a pre-planned manner and was, subsequently, appointed as MD PTVC vide Notification dated 27-2-2014. 3. It was averred by the learned counsel for the petitioner, Barrister Faisal Khan Toru, that such appointment was in clear violation and against the directions of the Hon'ble Supreme Court of Pakistan given in its judgment titled "Khawaja Muhammad Asif v. Federation of Pakistan and others", reported as 2013 SCMR 1205, as well as the Islamabad High Court's judgment dated 8-5- 2013 passed in W.P. No,1874 of 2013, against the provisions of the Companies Ordinance, 1984, rules of natural justice and all other applicable laws. It was contended that the respondent No,3 has been appointed as MD, PTVC despite the fact that he was an established defaulter of PTVC to the extent of Rs,14.139 million, as evidenced by the minutes of meeting dated 17-6-2013 of the Dispute Resolution Committee of PTVC, as well as the reconciliation statement dated 7-11-2013 issued by Mr. Matloob Ahmad Khan, Director Finance, PTVC. That, as such, even the respondent No,5 (Chairman, High Powered Selection Committee) failed to exercise his role and responsibilities with regard to the selection of respondent No,3 by inter alia ignoring the defaulter status of the respondent No,3 for the last ten (10) years and also ignoring the order of merit and short-listing conducted by Messrs A.F. Ferguson & Co. 4. Learned counsel further argued that the Prime Minister of Pakistan exercised his discretion in an unstructured and illegal manner by discarding the recommendation of the Federal Commission for Selection of Heads of Public Sector Organizations ("FCHPSO") whereby one Mr.Jamal Shah was proposed as the most suitable candidate for the post of MD PTVC, whereas the respondent No,3 was placed as second on the merit list. Learned counsel added that law does not provide the competent authority with unbridled, unfettered and unstructured powers while exercising its discretion for appointment of the Managing Director, PTVC. He stated that appointing authorities could not be allowed to exercise their discretion at their own whims, or in an arbitrary manner, rather, they are pound to act fairly, evenly and justly, and any violation of such principles is judicially reviewable. Furthermore, in order to exercise fair and transparent discretion, their actions must be based on an objective, open and impartial consideration to decide such matters and the objective of good governance can only be achieved by exercising discretionary powers reasonably. Learned Counsel went on to add that by virtue of Articles 4 and 5(2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide issues after application of mind, with reasons. 5. The learned counsel contended that the respondent No,3 has a clear conflict of interest in, on the one hand, being appointed as MD PTVC, and, on the other hand, owning production houses namely, Media Magic. (Pvt.) Ltd., a private limited company, of which he is an 80% shareholder and Messrs Pink Productions, a proprietorship that is proxy managed/run, by his wife, Aneela Malick. It
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was averred that conflict of interest arises when public officials have to make decisions at work that may affect their private interests and governments are expected to ensure that public officials do not allow their private interests and affiliations to compromise official decision-making and public management. He further contended that it is well-settled law that the entire process of recruitment leading to the appointment to a "public office" can be judicially reviewed under Article 199(1)(b)(iii) of the Constitution. The recruitment process must be above-board and the Courts are under an obligation to judicially review the integrity of the selection process of a public office. Finally, learned counsel concluded that the appointment of the respondent No,3 as MD PTVC was also a violation of sections 199 and 203 of the Companies Ordinance, 1984 in so far as (a) the competent authority for the appointment of the Chief Executive/MD of PTVC was the Board of Directors of PTVC, whereas the said appointment was, in fact, been made by the Establishment Division, Cabinet Secretariat; and (b) the respondent No,3, as MD PTVC, was precluded from engaging in businesses that were of the same nature and directly competed with PTVC. Learned counsel for the petitioner placed reliance on case-law reported as PLD 2013 SC 195, Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others, PLD 2013 Lahore 386, Tanvir Ahmed Khan v. Registrar Lahore High Court, Lahore, PLD 1990 SC 1092, Amanullah Khan v. Federal Government of Pakistan, 2010 SCMR 1301, Tariq Aziz-ud-Din's case, 2012 PTD 1522, PLD 2013 Lahore 343, Barrister Sardar v. FOP, PLD 2012 SC 132, Muhammad Yasin v. FOP, 2010 PLC (C.S.) 967, Sheikh Zaid Hospital through Chairman and Dean and another v. Dr. Muhammad Saeed and others, PLD 2012 SC 132, Muhammad Yasin v. FOP (Tauqeer Sadiq case) and 2013 SCMR 1159 and Ashraf Tiwana v. FOP (Chairman SECP case). 6. On the other hand, the respondents Nos.1 to 4 filed their reply and para-wise comments and raised certain preliminary objections to the maintainability of this Writ Petition i,e, (i) firstly, that the Writ Petition is not maintainable as the petitioner has an alternate efficacious remedy available to him i,e, in the form of filing a complaint before the FCHPSO, constituted in compliance of the orders of the Hon'ble Supreme Court of Pakistan in the Khawaja Asif's case reported as 2013 SCMR 1205; (ii) secondly, that since the petitioner himself chose to participate in the pre-qualification process supervised by Messrs A.F. Ferguson, therefore, he is stopped by his conduct to challenge the validity of that selection process; (iii) thirdly, that the petitioner has approached this Court with unclean hands and mala fide intentions, hence, is not entitled to discretionary relief; and (iv) finally, that the Writ Petition has been belatedly filed with a delay of ten (10) weeks and, therefore, suffers from laches. 7. On merits, the learned counsel for the respondent No,3, Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, contended that so far as the lowering of educational qualification, and changing of other terms and conditions through the Corrigendum are concerned, the same was done with a view to allowing a larger number of candidates to apply for the said post and to recruit the best talent. Therefore, it is wrong to say that same was done to accommodate a single individual and/or was person-specific. Learned counsel argued that the entire process of selection of MD, PTVC was totally transparent and competitive and the respondent No,3 was appointed through a open-merit selection process, which involved a pre-screening stage by a renowned HR Consultancy Firm, namely, Messrs A.F. Ferguson, followed by short-listing of five (5) names, out of which two short-listed names were forwarded by the FCHPSO to the Prime Minister, who then made his final choice. It was also averred that the respondent No,3 was never a defaulter of PTVC, instead, the correct position is that the two entities associated with the respondent No,3 (Media Magic (Pvt.) Ltd., and Messrs Pink Productions) had long-standing disputes with PTVC who approached the PTVC independently for the resolution of their disputes. The sums payable were reconciled by mutual agreement on 8-10-2013 and the undisputed liability of Rs,7.236 million was communicated vide letter dated 21-10-2013 and accepted in full by Messrs Pink Productions, prior to any
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consideration of the respondent No,3 for the post of MD, PTVC. This liability was paid off in full prior to the appointment of respondent No,3 as MD, PTVC. Furthermore, the audit certificate from a statutory auditor (i,e, Auditor-General of Pakistan) is not a mandatory requirement, instead, a clearance certificate was issued by PTVC itself. 8. The learned counsel for the respondent No,3 further contended that, pursuant to the order dated 8-5-2013 of this Court in W.P.1872 of 2013, a five-member Selection Board was constituted to consider the working directors of PTVC for the post of MD, PTVC. The said Selection Board was chaired by the Federal Minister for Information, Broadcasting and National Heritage and the other members thereof were the Secretary and Additional Secretary of the Ministry for Information, Broadcasting and National Heritage, along with Additional Secretary II, Establishment Division and the Director-General - IP of Ministry of Information, Broadcasting and National Heritage. The Selection Board interviewed all those working directors of PTVC who wanted to be considered for the post of MD, PTVC. The petitioner also applied to the Selection Board and was interviewed along with the other working directors. That the unanimous conclusion of the Selection Board was that none of the working directors were found suitable for promotion/ appointment to the post of MD, PTVC. Hence, after exhausting this step, the next step was initiated i,e, a fresh advertisement for the post of MD, PTVC, was published on 9th October 2013, inviting all qualified members from the general public to apply for the said post. The petitioner also applied for the same, pursuant to the said advertisement, however, he was not considered suitable by Messrs A.F. Ferguson and, therefore, not short-listed. It was, further vehemently asserted that the petitioner has approached this Court with unclean hands as he was given acting charge as MD, PTVC through judgment dated 12-4-2013 passed by this Court in Writ Petition No,2503 of 2009 on the basis that he was the senior most of the working directors of PTVC, but in fact he was not the senior-most director at that time. Rather, he was the third senior most director of PTVC, but he did not bring this fact to the notice of this Court, despite knowing well his actual position and seniority. As a result, he illegally occupied the post of acting MD, PTVC, till his relinquishment of charge on 13-1-2014. That the petitioner's aim in initiating these proceedings was to, once again, illegally occupy the post of MD, PTVC. 9. The next contention of the learned counsel for the respondent No,3 was that Mr. Muhammad Malick was appointed MD, PTVC, on 27-2-2014, whereas the present writ petition was filed on 5-5- 2014 i,e, after ten (10) weeks of the appointment of respondent No,3, which seems to be an afterthought and a counterblast to blackmail the respondent No,3 and to stop him from taking action against the petitioner for his acts of corruption committed during his tenure as acting MD, PTVC. He informed this Court that the petitioner's case has been recommended to the National Accountability Bureau (NAB) for investigation on account of his alleged corruption during service. Lastly, he argued that when there is material on record to show that a writ petition, styled as a public interest litigation, is nothing but a camouflage to foster personal disputes or vendetta to bring to terms a person, not of one's liking, or gain publicity or a facade for blackmail, such petition is liable to be thrown out for lack of bona fides. At the end of arguments learned counsel submitted that, disqualification, if any attached to respondent No,3 was shedded away before entering to the officer, therefore, this aspect has to be kept out of consideration at the time of issuance of writ. Reliance was placed on case-law reported as: AIR 1976 SC 2428 titled Dr. G. Seirana,. v. University of Lucknow and others, 2001 MLD 431, Mirza Nasir and others v. Mirza Hakim ud Din, 2007 SCMR 569, Overseas Pakistani Foundation and others v. Sq. Ldr. (Retd.) Syed Mukhtar Ali Shah and others, PLD 1966 Karachi 31, Ch. Rehmat Ali and others v. Custodian, Evacuee Property Lahore and others, PLD 2013 SC 413, Dr.Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary MA) Law, Islamabad and others, PLD 1969 SC 42, Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others, PLD 1965 SC 236, Aziz-ur-Rehman Choudhary v. M. Nasir-ud-Din etc. 2004 SCMR 1299, Dr. Azim-ur-Rehman Khan MEO v. Government of Sindh and another, 2012 SCMR 455, Dr. Akhtar
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Hassan and others v. Federation of Pakistan, (2005) 5 SCC 136, Gurpal Singh v. State of Punjab and others (2004) 3 SCC 363, Dr. B. Singh v. Union of India and others, (2005) 1 SCC 590, Dattaraj Nathuji Thaware v. State of Maharashtra and others. 10. The Secretary Information (respondent No,2) appointed his private counsel, namely Mr. Feisal Hussain Naqvi, Advocate Supreme Court, which is against the settled norms and practice, as in the presence of the learned Additional Attorney-General, Deputy Attorney-General and Standing Counsel, the Secretary Information (respondent No,2) was not obliged to engage the services of some private counsel and this fact was pointed out during the case proceedings. Learned counsel so engaged submitted that since his power of attorney is on the file, therefore, he may be allowed to argue. He, subsequently, adopted the arguments advanced by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court and further asserted that Messrs A.F. Ferguson was an internationally recognized HR Consultancy Firm, which carried out the functions mandated to it by PCHPSO with transparency and short listed five (5) candidates for MD, PTVC purely on merit and in a fully transparent manner. The learned Deputy Attorney General, while appearing on behalf of respondent No,1, also defended the process of appointment of the respondent No,3 by adopting the arguments already advanced. 11. I have heard the learned counsel for the parties at considerable length and have gone through the entire record. 12. Before adverting to the issue of the validity or otherwise of the appointment of respondent No,3 as MD, PTVC, I find it appropriate to provide certain facts which led to the initiation of the process pursuant to which respondent No,3 was appointed as MD, PTVC. The operative part of this Court's judgment dated 12-4-2013 passed in Writ Petition No,2503 of 2009, titled as "M. Ashraf Azeem v. Federal Government of Pakistan, etc." whereby the appointment of Mr. Yousaf Baig Mirza, as MD, PTVC was declared illegal, is reproduced as under:- "It is amazing to note that, respondent No,4 was appointed for the 3rd time in October, 2010 but terms and conditions of his service were fixed on 15-1-2011 which itself is not only dubious but unprecedented as well. It is beyond the comprehension that any head of Organization would be allowed to take profits from the income/ reverence received. 1 totally failed to understand that why M. Yousaf Baig Mirza, declared entitled to get 3% of Monthly Advertisement Revenue beside his salary. As head of PTVC, he was supposed to work for generating/increasing income of PTVC but not to get share out of it. Although, his entire package looked unreasonable; but this part is offensive to the rights of regular employees and those who retired by giving their youth to PTVC but neither being paid reasonable salaries nor their due pension. I have no hesitation in holding that Mr. Yousaf Baig Mirza, was not entitled to receive any amount against advertisement revenue, therefore, he is under obligation to return whole amount received by him as 3% of Monthly Advertisement Revenue. The august Supreme Court through different authoritative pronouncements, more particularly Tariq Aziz-ud-Din case reported as 2010 SCMR, 1301, Muhammad Yasin's case, reported as PLD 2012 SC 132, Sh. Riaz-ul-Haq's, case in Constitutional Petition No,53 of 2007 and Hajj Corruption reported as PLD 2011 SC 963, held categorically that for appointments in the state owned Companies, Corporations, Establishments, Organizations, etc. Process of appointment need to be competitive, credible, fair, transparent and on merits, instead of political affiliation, specific background and favouritism. ' If any director of the PTVC is to be promoted then principle of seniority-cum-fitness has to be followed and if circumstances compel, then any person may be appointed from the open market but through competitive, transparent and objective process. ' In this view of the matter, I am totally convinced that appointment of respondent No,4 is result of colourable exercise of authority, without due process, non-transparent approach, against the principles of healthy competition, fairness, openness, merit, offensive to the constitutional
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provisions and besides the dictums laid down by the Hon'ble Supreme Court of Pakistan. As such notifications of his appointment No,1/12/98-E-6, dated 9th April, 2007, No,1/42/2004-E-6, dated 8th October, 2010 followed by Office Order dated 15-1-2011 are set aside. He shall cease to be M.D; PTVC, forthwith, and all the appointments made during his tenure, without competitive process are also declared as illegal and void. The Secretary Ministry of Information is directed to commence competitive process with proper advertisement if appointment of M.D PTVC is to be made from open market, may be completed within 3 weeks but not later than 10th of May, 2013. The office of Managing Director, PTVC is very important, sensitive, and strategic post, as organizational behavior of this State Owned Corporation has strong impact on the society and culture of the country. ' According to the information, submitted before court, Mr. Mustafa Kamal Qazi, Director Engineering, is the senior most Working Director in PTVC therefore, he is to act as Managing Director, PTVC till the appointment of regular Managing Director through competitive process or through internal appointment of any Director as M.D PTVC. ' Acting Managing Director, PTVC shall look after day to day affairs, necessary to run the establishment of the PTVC. He is also directed to proceed in accordance with law against all employees brought to the establishment without competitive process, during last two tenures of Mr. Yousaf Baig Mirza. However, low paid employees like sweepers, maid, qasids, office attendants etc. May not be removed. He is further directed to get calculated from financial expert of PTVC, the total amount received by Mr. Yousaf Baig Mirza as 3% of Monthly Advertisement Revenue arid immediately recover that amount from him. ' The report of steps taken shall be submitted to the Registrar of this court for perusal of court. ' The writ petition is disposed of with above directions." 13. In compliance with the above judgment and following the guidelines provided by the august Supreme Court of Pakistan, an advertisement for the appointment of Managing Director, PTVC, on a two (2) year contract, was published by the Ministry of information, Broadcasting and National Heritage in the daily "Dawn" dated 30-4-2014, which reproduced hereunder:--- GOVERNMENT OF PAKISTAN MINISTRY OF INFORMATION AND BROADCASTING VACANCY ANNOUNCEMENT MANAGING DIRECTOR Applications are invited for a 2 years contractual appointment against the senior position of Managing Director in Pakistan Television Corporation, Islamabad under the administrative control of Ministry of Information and Broadcasting. The position is placed in MP-I Grade in terms of Finance-Division's O.M. No,F.3(2)R-4/2011 dated 24-12-2012 (Annex-B) vis-a-vis salary package, perks and privileges. The said OM is accessible on Finance Divisions' website. Eligibility The prospective candidate is supposed to possess the following qualification and experience: (a) MBA, MPA, MSc Mass Communication or Journalism/MSc Engineering from HEC recognized University in Pakistan OR abroad. A degree in law shall be considered an additional asset. Degrees shall be verified from H.E. C. (b) Age between 45 to 57 years. (c) Complete understanding of GOP Governance Framework in terms of Rules of Business 1973, Media Laws, Financial Rules and regulations framed there under. (d) Written evidence of 20 years' service experience in a combination of public and private sector organizations in governance, management, financial management, and marketing. (e) PTV's internal Directors may also apply. (f) Government Servants meeting the eligibility criteria may also apply. Responsibilities
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The prospective selectee will have to operate in news media and programmes production and related competitive environment, interact with GOP Organizations and must have a fair understanding to deliver in PPRA-regulated and Planning Commission's guidelines regulating public sector development schemes in GOP Corporations. Selection Procedure GOP's selection criteria/procedures outlines in Civil Establishment Code-2007 (Vol-1: Chapter-2 SI.Nos.140-141) read with sections 198 and 199 of Companies Ordinance, 1984 shall apply when shortlisted and called for interview by a Federal Government's Selection Board. How to apply Interested candidates may apply under a covering application, attaching 3 passport size, photographs, Degrees, Testimonials, proof of experience, Metric Certificate as proof of DOB, NIC, complete residential address and Landline Numbers plus Mobile. Applications complete in all respect (in sealed envelope) should reach the undersigned by 7th May, 2013 at the following address. (Adman Akram Bajwa) Assistant Director (TV) 4th Floor, Cabinet Block, Pakistan Secretariat Islamabad 14. However, having some reservations to the above advertisement, Mr. Qazi Mustafa Kamal (present petitioner) the then acting MD, PTVC, filed Writ Petition No,1874 of 2013, contending therein that the respondents had amalgamated…
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