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Petitioner: MINISTRY OF INTER PROVINCIAL COORDINATION VS Respondent: Major (R) AHMAD NADEEM JUDGMENT
Court Name: Islamabad High Court Judge(s): Riaz Ahmad Khan, Noor-Ul-Haq N. Qureshi Title:MINISTRY OF INTER PROVINCIAL COORDINATION vs Major (R) AHMAD NADEEM
JUDGMENT
Reported As: 2014 CLC 600 Result: Order accordingly Judgment JUDGMENT ' RIAZ AHMAD KHAN, J.--- This judgment is directed to dispose of instant I.C.A. No. 928 of 2013 as well as Nos.936 of 2013, 984 of 2013 and 1033 of 2013, as common questions of law and facts are involved in these appeals. 2. Facts constituting the background of these appeals are that in order to regulate the development and control of sports in Pakistan, the Government had promulgated Sports (Development and Control) Ordinance, 1962. Deriving authority from this Ordinance, the Government of Pakistan issued S.R.O. Dated 13th February, 2013, by virtue of which Constitution of the Pakistan Cricket Board was promulgated. Article 28 of the said Constitution was regarding Nomination Committee and Appointment of Chairman, which provided that Nomination Committee shall be formed at least three months prior to the expiry of tenure of the Chairman or immediately upon the office of the Chairman falling vacant. It was also provided that the Nomination Committee may consider the names of two or more individuals recommended by Patron for the post of the Chairman. Section 29 of the said Constitution was regarding discussion by the Nomination Committee, which provided that the Nomination Committee could 'unanimously reject the names or could recommend the name of one of the individual to the Board of Governors for the post of Chairman. 3. Major (R) Ahmad Nadeem Sadal was the Graduate, Cricketer since 1980. He remained as coach of Army Cricket Team from 2007 to 2011. Feeling aggrieved of above said two provisions of Constitution i,e, Articles 28 and 29, he filed W.P. No. 2242 of 2013 against Federation of Pakistan,
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Pakistan Sports Board, Ministry of Inter-Provincial Coordination and Chairman, Pakistan Cricket Board. However, the name of Chaudhry Muhammad Zaka Ashraf was afterwards added, but not as a separate party, rather his name was written with pen. Respondent No.5 Ch. Muhammad Anwar was impleaded on his own application. The Sprayer of the petitioner in the writ petition was to the following effect:--- "It is, therefore, respectfully prayed that the instant writ petition may kindly be accepted, the paragraphs 28 and 29 and definition of Nomination Committee may kindly be declared as illegal, unlawful, ultra vires the Constitution, without lawful authority and jurisdiction and of no legal effect, the same be set aside/struck down in the interest of justice. ' It is further prayed that the Chairman (respondent # 4) of PCB be restrained from performing his function till the time his appointment is validated under the approved Constitution by Board of Governors, General Body, Cabinet Division and Ministry of Inter-Provincial Coordination, Government , of Pakistan. ' It is also prayed that the Chairman (Respondent # 4) may also be restrained from conducting any meeting posing himself the Chairman of Pakistan Cricket Board in any manner whatsoever till the final decision of the main writ petition. ' It is further prayed that re-election may be conducted under the Election Commission providing clear chance to the Ex-Cricketers to contest the said election. ' Any other relief which this Hon'ble Court deems just and proper may also be granted to the petitioner." 4. The said writ petition was filed on 25-5-2013, however, was fixed before the Court on 28-5-2013. Along with the petition application for interim relief was also filed with the prayer that respondent No.4 (Chairman, PCB) may be restrained from performing his functions as Chairman, PCB till final disposal of the writ petition. Learned Judge in Chamber was pleased to call for comments of respondents Nos.1 to 3 and notice was issued to respondent No.4 for his representation. In respect of C.M. For interim relief, the following order was passed:- "Prima facie, petitioner has good arguable case in his favour, as entire process of the election of respondent No.4 appeared to be motivated and polluted. And in case respondent No.4 is allowed to act as Chairman, PCB as result of dubious and non-transparent election, it may complex the situation and any decision taken by respondent No.4 may cause loss to the PCB. In this view of the matter, respondent No.4 is restrained from acting and performing duties as Chairman, PCB till next date of hearing. " 5. On 13-6-2013, when the case was again taken up, the learned Judge in paras. 2, 3 and 4 held as follows:--- (2) Learned counsel for respondent No.4 submitted that annual general meeting of ICC is scheduled to be held in the last week of June, 2013 in United Kingdom, therefore, respondent No.4 may be permitted to attend that meeting. Request of learned counsel cannot be acceded to as very qualification to hold the post of Chairman PCB by respondent No.4 is under challenge and this Court has already passed restraining order, therefore, which cannot be reviewed at this stage. (3) In the peculiar circumstances, respondent No.3 is directed to appoint some acting Chairman of PCB fully qualified to be appointed as Chairman, till final disposal of instant writ petition, with .The authority to attend forthcoming meeting of ICC so that Pakistan may be represented in the meeting. (4) Let matter be posted for hearing on 19-6-2013. 6. Ow 19-6-2013, Ministry of Inter-Provincial Coordination submitted three names of Mr. Majid Khan, Mr. Chishti Mujahid and Mr. Mumtaz Rizvi for appointment of anyone of them as acting Chairman PCB as well as for posting on regular basis. On 1-7-2013, the learned Judge in Chamber came to
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know through media reports that Mr. Najam Aziz Sethi, had been appointed as Chairman PCB, so the following order was passed:- "Through media reports it has been conveyed that Mr. Najam Sethi, a known Journalist has been appointed, as acting Chairman PCB, whose name was never mentioned before this Court during hearing of this case. More particularly, his appointment has been made without seeking permission from the Court with regard to panel consisting of Mr. Majid Khan, Mr. Chishti Mujahid and Mr. Mumtaz Rizvi. (2) The Secretary, Ministry of Inter-Provincial Coordination, Government of Pakistan, Islamabad, is directed to explain on which consideration Mr. Najam Sethi, has been appointed as Chairman PCB, when professional cricketers with vast experience and knowledge like Mr. Asif Iqbal, Mr. Majid Khan and Mr. Ramiz Raja, are available for this job. (3) Notice may also be issued to Mr. Najam Sethi, for his representation before the Court on next date of hearing. 7. However, vide judgment dated 4-7-2013, the writ petition was accepted. In the impugned judgment, learned Judge in Chamber held that the order of appointment of Mr. Najam Aziz Sethi as Acting Chairman ceased to hold field after 4th July, 2013 when the Court finally decided the writ petition. Practically, Mr. Najam Aziz Sethi is no more Acting Chairman rather his status was of Caretaker being appointed by this Court for a period of 90 days with the object to look into day to day affairs of PCB, cooperate and ensure the holding of election by the .Election Commission of Pakistan within the stipulated period commencing from 21st July, 2013 to 18th October, 2013. Appointment of members of Selection Committee, its Chairman and other appointments/termination of services in the PCB as well as any other major decision shall be right and domain of the newly-elected Chairman, PCB. 8. The learned Judge in the judgment gave history of cricket in Pakistan, list of employees appointed in Cricket Board, discussed controversies, and came to the conclusion that Chairman, PCB is always appointed on political consideration, instead of merit. With the exception of two persons, the rest of persons appointed as Chairmen, did not have good administrative qualities, understanding about the game of cricket and obsession to promote the game at gross root level. The post of Chairman was not only lucrative, authoritative, and of limelight but also provided an opportunity of numerous foreign visits, interaction with celebrities of game of cricket, showbiz and sponsors. It was further held that if the Chairman PCB himself was corrupt, he would never be able to eliminate corruption of match and spot fixing. Learned Judge therefore, held that legendry cricketers owe to Pakistan their skills, experience and temperament by passing it on to new generation of cricketers and it was therefore, suggested that players like Javed Miandad, Mohsin Hassan Khan, Saeed Anwar, Inzamam-ul-Haq and Muhammad Yusuf be given the task to identify the batting talent in the Camps organized by District and Regional Cricket Associations and after picking the youngsters they may be trained in the National Cricket Academy, whereafter they may be picked up by the Selection Committee. Similar other suggestions were made by the learned Judge. In para-21 of the impugned judgment, the learned Judge held that according to media reports, funds of PCB which were about 8 billion, had been reduced to less than 3 billions in the tenure of Chaudhry Muhammad Zaka Ashraf and therefore, the learned Judge ordered for special audit of Pakistan Cricket Board as well as National Cricket Academy. It was further held that criminal cases must be registered and investigated by F.I.A. Against persons who are involved in plundering the money of PCB and converted the assets of the organization for personal use and for the benefit of irrelevant persons. In para-22 it was held that International Cricket Council directed all the cricketing Boards to evolve democratic process of election for the post of Chairman, Cricket Board, however, according to learned Judge, for the appointment of Chaudhry Muhammad Zaka Ashraf, Articles 28, 29, 30 and 31 were inserted in the Constitution of Pakistan Cricket Board, as the
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above-mentioned articles do not say anything about the experience of cricket. Resultantly, Articles 28, 29, 30 and 31 were declared to be void ab initio, unconstitutional, besides the democratic values, offensive to rights of individuals qualified to be elected as Chairman, PCB, against the principle of transparency, fairness, impartiality, credibility and openness, therefore, all the provisions under Part-IV of the Constitution of PCB were declared to be of no legal effect and it was directed that the same may be deleted forthwith. It was further held that in the past, President of Pakistan was the Patron of Pakistan Cricket Board and after the 19th Constitutional Amendment, this authority now vests in the Prime Minister. It was therefore, directed that the Election Commission of Pakistan shall hold the election of Chairman PCB within ninety days starting from 21st July, 2013 and Electoral College should consist of ,Presidents of all elected Regional and District Cricket Associations and nominees of departments playing first class cricket. Every voter of the Electoral College shall be eligible to contest the election provided he is not carrying any disqualification under the organic law of the Country i,e, Constitution of Islamic Republic of Pakistan, remained first class/test cricketer or has experience of running District or Regional Cricket Association and in case of nominee from 1st Class playing departments has experience of administration, at least Graduate and not a defaulter of PCB. 9. Feeling aggrieved of said judgment, appellant Ministry of Inter-Provincial Coordination filed I.C.A. No.928 of 2013, appellant Chairman Pakistan Cricket Board filed I.C.A. No.936 of 2013, appellant/petitioner Major (Retd.) Ahmed Nadeem Sadal filed I.C.A. No.984 of 2013 and Chaudhry Muhammad Zaka Ashraf, Chairman, Pakistan Cricket Board filed I.C.A. No.1033 of 2013. 10. Ms. Asma Jahangir, Advocate, learned counsel for Ministry of Inter-Provincial Coordination submitted that the impugned judgment being based on whims and conjectures and personal knowledge, is liable to be set aside. It was further submitted that learned Judge had passed the judgment, which was beyond the scope of Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Policy matter of the Government was not only interfered with, rather the learned Judge had tried to give his own policy and in such a way, had assumed the executive authority and as such the impugned judgment is violative of the Principle of trichotomy of powers. It was further submitted that the learned Judge had assumed the jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan, rather had gone beyond that and therefore, the impugned judgment was liable to be set aside. 11. Mr. Taffazul Haider Rizvi, Advocate representing Pakistan Cricket Board and Mr. Najam Aziz Sethi, submitted that the writ .Petitioner had no locus standi and no grievance. The writ petition was liable to be dismissed on this score alone. The writ petitioner had challenged Articles 28 and 29 of .The Constitution of PCB, whereas learned Judge had granted relief, which had not even been prayed for. In such a way, the learned Judge had gone beyond the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It was further submitted that in addition to Articles 28 and 29, Articles 30 and 31 were also declared void ab initio, whereas the petitioner had not asked to declare these articles as void ab initio. According to learned counsel, learned Judge had passed the judgment on the basis of sunrises and conjectures. It was however, added that during pendency of the writ petition on the very first day, Chairman, PCB was removed and as a result, chaos and confusion was created. Mr. Najam Aziz Sethi was appointed by the Government and in that respect, Notification dated 14th October, 2013 was issued by virtue of which, the Prime Minister was declared as Patron, instead of President. Articles 28, 29, 30 and 31 were omitted from the Constitution and Article 41 of the Constitution was also amended. By virtue of this new amendment in Article 41, the Pakistan Cricket Board was superceded and the Federal Government was directed to constitute an Interim Management Committee comprising of five members, who could elect one of them as Chairman. This supersession was however for 90 days. Learned counsel further submitted that this Notification was not challenged by anyone. On the same day, another Notification was issued by
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virtue of which, the Prime Minister appointed Interim, Management Committee comprising of Messrs Haroon Rasheed, Najam Aziz Sethi, Naveed Akram Cheema, Shaheryar Khan and Zaheer Abbas. The I.M.C. Was directed to elect one of its members as Chairman. Learned counsel further submitted that since these Notifications have not been challenged, therefore, if any order is passed by this Court, these Notifications would remain in the field and the Government would run affairs of the Pakistan Cricket Board in accordance with these Notifications. 12. Argument regarding Notification was supported by Ms. Asma Jahangir, learned counsel for Ministry of Inter-Provincial Coordination, however, she submitted that the Government has no intention of hijacking Pakistan Cricket Board and any order passed by this Court would be obeyed, irrespective of the fact as to what, order is passed in respect of these Notifications as well. 13. Mr. Afnan Karim Kundi, learned counsel for appellant, Chaudhry Muhammad Zaka Ashraf submitted that the impugned judgment is perverse, arbitrary against law and facts available on record, therefore, liable to be set aside. According to learned counsel, on the very first day, when the case was taken up, through interim relief, final relief was granted and Chaudhry Muhammad Zaka Ashraf was removed from the post of Chairman Cricket Board. This order was totally illegal for the simple reason that final relief could not be granted at ad-interim stage and-that too without notice to the other party. In the present case, Chaudhry Muhammad Zaka Ashraf was not party in his personal capacity. The grounds on the basis of which Chaudhry Muhammad Zaka Ashraf was removed were totally unfounded and were not even pleaded by the petitioner. Learned counsel submitted that it is not known as to wherefrom the learned Judge gathered the remarks attributed to Chaudhry Muhammad Zaka Ashraf while passing order regarding his removal. Learned counsel further submitted that the learned Judge in Chamber could strike down Articles 28 and 29 of the Constitution of Pakistan Cricket Board, if these were against any provision of the Constitution or law, but instead on the basis of his personal whims, learned Judge held that these provisions were provided in the Constitution to benefit Chaudhry Muhammad Zaka Ashraf. According to learned counsel, it was totally misconceived and against the facts. It was further submitted that the remarks regarding appointment of Chaudhry Muhammad Zaka Ashraf and other irregularities attributed to Chaudhry Muhammad Zaka Ashraf were not borne out from the record and it is not known as to how the learned Judge could pass those remarks. It was further submitted that Chaudhry Muhammad Zaka Ashraf had been appointed in accordance with law and he could not be removed from the said post in violation of law and on the basis of personal whims. Learned counsel also submitted that it was nowhere provided on the record that Chaudhry Muhammad Zaka Ashraf had personal relations with Mr. Asif Ali Zardari, ex-President of Pakistan and that it was because of this that he had been appointed as Chairman, Pakistan Cricket Board. It was totally personal belief of the learned Judge. It was further submitted that no judgment can be passed on the basis of personal whims or even knowledge of the Judge and the judgment has to be within four corners of law. Learned counsel further submitted that the Chairman Pakistan Cricket Board as well as Ministry of Inter-Provincial Coordination has also changed its position after filing of appeal. While arguing the case before learned Judge, the position of the Pakistan Cricket Board as well as Ministry of Inter-Provincial Coordination was that removal of Chaudhry Muhammad Zaka Ashraf was unlawful, whereas now at the time of appeal, they have made slight change in their submissions, as now their object is that the appeal should be accepted, however, new persons of new Government are to be appointed as Chairman of the .Pakistan Cricket Board. It is because of this that reference is being made to two Notifications, whereas these Notification were issued as stopgap arrangements, because total confusion arose after the impugned judgment. It was further submitted that these Notifications would become invalid as and when the judgment is announced by this Court. Learned counsel further submitted that Pakistan Cricket Board as well as Ministry of Inter Provincial Coordination have tried to mislead the Court that earlier some Notifications were
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produced before the Court, wherein it was provid6d that the reason for issuance of Notification was the judgment of the learned Judge, whereas now the second copy of the same Notification has been filed wherein preamble has not been shown and an effort is being made to create impression as if these Notifications are forever. Learned counsel further submitted that the appeal be accepted and Chaudhry Muhammad Zaka Ashraf be restored to his position. 14. Mian Abdul Rauf, Advocate, learned counsel for appellant/writ petitioner submitted that PCB itself is component of the Government, therefore, the Board as well as Ministry of Inter-Provincial Coordination could appoint a counsel in accordance with the rules of business, but no 'such procedure was adopted. Power of attorney in favour of Mr. Taffazul Haider Rizvi, Advocate as well as Ms. Asma Jahangir, Advocate are defective, therefore, both counsel cannot represent these appellants. It was further submitted that in absence of proper power of attorney presumption would be that no appeals were filed. These appeals being not maintainable are liable to be dismissed. Learned counsel further submitted that appointment of Mr. Najam Aziz Sethi was also against law, as the requirement of International Cricket Council (ICC1 was that the Cricket Board be constituted through elections. Therefore, the appointment of Mr. Najam Aziz Sethi or any other Chairman through other means except Election, would be illegal. Learned counsel further submitted that the learned Judge was right in holding that proper Election of the Pakistan Cricket Board be held in order to elect the Chairman, Pakistan Cricket Board and as such, the findings of learned Judge regarding holding of Election are quite correct and legal. However, the appointment of Mr. Najam Aziz Sethi and that of D.M.G. Officer as Secretary P.C.B. Be set aside. 15. We have heard learned counsel for the parties and have also perused the record. 16. The Government of Pakistan in order to regulate the development and control of sports in Pakistan, promulgated Sports (Development and Control) Ordinance, 1962. Subsection (2) of section 3 of the said Ordinance provides that a Board shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable. As such, the Pakistan Cricket Board by itself is a corporate body, which can sue and be sued. The Board itself is not a component of the Government and therefore, the first objection of learned counsel for the writ petitioner that the Cricket Board is the component of the Government and therefore, the power of attorney executed in favour of Mr. Taffazul Haider Rizvi, Advocate is illegal, is not correct. The record shows that proper resolution was passed by the Board authorizing Mr. Subhan Ahmad, Chief Operating Officer and Brig (R) Sajid Hameed, Director Coordination to file the case on behalf of Pakistan Cricket Board. As far as power of attorney in favour of Ms. Asma Jahangir is concerned, that was signed by the Section Officer. The contention that the said power of attorney was not executed in accordance with the Rules of Business, is the internal procedure of the Ministry and the same could be challenged only by the Ministry, executing the power of attorney. Opposite party cannot raise the objection in respect of the same. The contention that the Ministry is represented by the Secretary is correct, however, normally the correspondence is made through Section Officers. Both the objections of the learned counsel, for writ petitioner are therefore, invalid. 17. First Constitution of Pakistan Cricket Board was promulgated on 20th September, 2007. It was published in the official Gazette on 18th October, 2007. Article 5(1) of the said Constitution provided that the Patron shall appoint a person of high repute and integrity with management experience as the Chairman for a period of three years, who shall be eligible for reappointment for one further consecutive term of three years. According to section 2(t), President of Islamic Republic of Pakistan was Patron of the Board. Under Article 5 of the said Constitution of Pakistan Cricket Board, Chaudhry Muhammad Zaka Ashraf was appointed as Chairman, Pakistan Cricket Board vide Notification dated 13th October, 2011. The tenure was to end on 30th October, 2014. By that time there was no complaint regarding appointment of Chaudhry Muhammad Zaka Ashraf, as
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Chairman. However, during this period certain new developments took place, which included establishment of International Cricket Council. It was limited by guarantee and not having share capital; different countries of the world were the members of the Council. Articles and Memorandum of the Association were prepared and Para 2.9 of the Article and Memorandum of Association was regarding Independence of Member Boards. For the sake of convenience, the same is reproduced hereinbelow:--- "2.9 Independence of Member Boards (A) Members must provide for (a) free elections and/or (b) appointments from amongst their members for their executive body or nominees from outside their members appointed by their executive body. This obligation shall be included in their statutes. Where there is no such provision or where the Executive Board considers an executive body of a Member not to have been established by free elections and/or appointments as indicated above, the Executive Board shall have the power to suspend or refuse to recognise such Member or its executive body (including an executive body set up on an interim basis), subject to the provisions of Article 2.7. (B) Where a government interferes in the administration of cricket by a Member, including but not limited to interfere in operational matters, the selection and management of teams, the…
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