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Petitioner: Syed Mubashir Raza Jaffri, Etc. VS Respondent: Employees Old Age Benefits Institutions JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Mushir Alam, Asif Saeed Khan Khosa Title:Syed Mubashir Raza Jaffri, Etc. vs Employees Old Age Benefits Institutions
JUDGMENT
Reported As: 2014 PSC 861 Result: Petition allowed Judgment JUDGMENT ANWAR ZAHEER JAMALI, J. -- On 2.2.2011, the petitioners brought Constitution Petition No. 6 of 2011, under. Article 184(3) of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), for agitating their two-fold grievances against the Employees Old Age Benefit Institution ("EOBI"), a body established under the Employees Old Age Benefit Act XIV of 1976 ("the Act 1976"), and its management, arraying EOBI, the Federation of Pakistan through Ministry of Labour and Manpower, Mts. Zafar Iqbal Gondal, Chairman, EOBI, Mushtaq Samoo, Director, EOBI/Secretary Board of Trustees, Kanwar Waheed Khursheed, Director General (Investment)/Convener of Selection Committee-2, Muhammad Hanif, Officiating Director General/Convener of Selection Committee-I and Mirza Imtiaz Ahmed, Acting Director General (Finance & Accounts), Convener of Selection Committee-3, as respondents. The averments made in the petition reveal that the first grievance of the petitioners is regarding appointment of more than 213 persons in BPS-16 to BPS-20, as detailed in the petition, in a patently illegal manner on the basis of political influence, nepotism and cronyism, under the chairmanship of respondent No. 3 (Zafar Iqbal Gondal), in league with respondents No. 4 to 7, while the other grievance is as regards large scale financial corruption and mismanagement of funds of the EOBI, as detailed in the petition. Based on such allegations, reliefs prayed for in the petition read as under:- "(I) Declare that all the impugned appointments made in the Respondent No. 1/EOBI are unlawful, illegal and void ab initio and in violation of prescribed recruitment procedure/operating manual.
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(ii) Declare that EOB Fund cannot be utilized or invested in contravention and violation of EOB Act, 1976 and EOB (Investment) Rules, 1979. (i.e) Declare that any amount utilized in corrupt practices by the EOBI Management/Respondents and others are without lawful authority and the same may be recovered from the Respondents. (iv) Direct that the respondents that any Fund invested against the sprit of EOB Act, 1976 and EOB (Investment) Rules, 1979 shall be disinvested. (v) Grant any other relief which as deemed appropriate, just and proper by this Hon'ble Court in very circumstances of the case." 2. Since thereafter, during the proceedings of this petition, several orders of interim nature have been passed by the Court, primarily, to find out the substance of these allegations against the respondents, whereupon several miscellaneous applications/concise statements/replies and documents have been submitted and brought_ on record by the respondents in an attempt to justify such appointments and to explain their position as regards mismanagement of funds of the EOBI. In addition to it, in response to our order dated 12.9.2013, directing publication of general notice regarding the present proceedings in some newspapers of were circulation from Islamabad and Karachi, for information of the appointees of EOBI whose appointments have been challenged or who are likely to be affected with the outcome of these proceedings, many miscellaneous applications for impleadment as party to these proceedings have been received from various groups/individuals, who, according to their claim are such appointees or are likely to be affected from any final outcome of these proceedings, which have been entertained and allowed, 3. Another human rights case on the same subject and relating to similar grievances, bearing No. 48012-P of 2010; which is based on the complaint dated 30.9.2010, made by one Tajamul Hussain has also been tagged with this petition, in terms of order dated 20.4.2011, which has thus proceeded alongwith this petition. In the said human rights case, inter alia, illegal appointments allegedly made in EOBI have been brought to the Court's notice and challenged on the basis of facts detailed in the said complaint. 4. It seems that while proceedings in these two cases were sub-judice before the Court, with reference to a programme aired through some T.V. Channel on 27.6.2013, titled as "corruption scandal of more than forty billion rupees in the EOBI" on 29.6.2013, a detailed note was submitted by the Registrar of the Court before the Honourable Chief Justice of Pakistan, unfolding therein the attributions of the participants of the said programme against EOBI with specific reference to the (i) purchase of plots in DHA, purchase of Crown Plaza in F-7 Markaz, Islamabad, (i.e) purchase of two controversial plots in Sukkur, (iv) development of cricket ground in Islamabad, (v) purchase of several plots from CDA, (vi) purchase of forty kanals sixteen marlas land in Lahore, (vii) purchase of four floors of plaza/hotel in Lahore, (viii) construction of seven star hotel in front of Lahore Airport, (ix) construction of M-9 motorway by EOBI, (x) purchase of twenty acres land near Karachi Airport in billions, and (xi) purchase of two 4300 cc parado jeeps for personal use of the Chairman, EOBI. Taking notice of such allegations contained in the note of the Registrar, per order of the Honourable Chief Justice dated 29.6.2013, it was converted into Constitution Petition No. 35 of 2013, which is now separately proceeding to probe into the allegations of financial corruption and misuse of funds allegedly made in the EOBI by its management and other high ranking Government officials involved in the said scam. Since the issue of financial corruption and misuse of funds etc in EOBI has now been taken up separately in the said Constitution petition of which this Court is seized, and proceedings are pending, we deem it appropriate to prom& further and adjudicate the present petition alongw HRC No. 48012-P of 2010 and CMA No. 5216 of 2012 only to the extent of the case of
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the petitioners/complainant regarding illegal appointments in EOBI, leaving the other aspects relating to the financial corruption, misuse of funds and mismanagement etc. In EOBI to ,e exclusively dealt with in other Constitution Petition No. 30 of 2013. 5. Reverting to the facts and the grounds stated in Constitution Petition No. 6 Cr 2011 and HRC No. 48012-P of 2010 in this context and for their proper understanding, it will be useful to summarize the same as under: 6. The petitioners in Constitutional Petition No. 6/2011 have called in question the manner in which more than 213 appointments were made in EOBI (which is said to form almost 40% of the total strength of its Officer cadre) alleging that as such appointments were made in flagrant violation of the prescribed recruitment procedure set out, inter alia, in Clause No. 02.05.2 of the EOBI Operating Manual Chapter 2, they are therefore unlawful, illegal and liable to be set aside. 7, It has been contended that in April 2009, EOBI advertised vacancies inviting applications to fill a large number of posts from grades 16 to 20 against which 23648 applications were received and from which suitable applicants were to be short listed. It was alleged that even before commencement of the normal recruitment procedure, appointments against 132 vacancies were already finalized, and made on the basis of political pressure nepotism and cronyism, while some other persons managed their appointments on deputation basis against regular posts for which vacancies had already been advertised. Many of whom were later absorbed as Regular Officers in violation of the quota earmarked for different provinces, they did not belong to. The petitioners have also submitted that some lists of .Names were sent by the Personal Secretary to the Federal Minster of Labour and Manpower, which were then forwarded to the then Deputy Director General (HRD) Javed Iqbal and these persons were later appointed in Grade 16 and above, as opposed to those individuals who had applied through the advertisement. Moreover as per the regulations, shortlisted candidates were to be called for a written test on the basis of the requirement of Operating Manual as well.As the resolutions passed by the Board of Trustees, but this procedure was completely ignored. The petitioners have been further aggrieved by the purported act of the respondents for allegedly issuing back-dated appointment letters to various handpicked persons in order to avoid being in contempt of an interim order of the Peshawar High Court passed in Writ Petition No. 209/2010 whereby the respondents were restrained from issuing any appointment letters till the disposal of the said petition. 8. The petitioners in this case have further raised their finger towards the manner in which appointments were fast-tracked; the committees established to interview applicants concluded their interviews on 1st June, 2010 and appointment letters were issued on 2nd June, 2010, indicating that the committee's recommendations were approved by Respondent No. 3 within one day, after which appointment letters were sent to all within the span of one working day. The petitioners have also been aggrieved by the fact that these unlawful appointees did not provide, any documents proving their educational qualifications etc. That had to be attached with each candidate's application, subject, to verification by the HEC. Indeed, there were apparently many appointees who claimed to have completed their, education in 2010, whereas the selection process called for all applications that, fitted the requisite educational criteria in the year 2009. 9. In Human Rights Case No. 48012/P-2010, nearly identical allegations regarding irregular appointments have been levelled against the respondents (EOBI). It has. Been forcefully alleged that the recruitments were made in a male fide manner whereby those individuals who had links with politically influential persons within the then ruling PPP government were appointed. The petitioner reiterated and drew Court's attention towards the fact that all posts had been filled
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without completion of the requirement of written tests which is against the EOBI recruitment procedure. Moreover, the then Chairman EOBI, Mr. Zafar Iqbal Gondal, was also accused of making a large number of appointments from the elected constituencies of his elder brother, Mr. Nazar Muhammad Gondal former Federal Minister of Food and Agriculture, District Mandi Bahauddin and Mr. Nadeem Afzal Chann, MNA (NA-64 Sargodha) sitting Chairman, PAC, on the basis of nepotism and corruption. 10. In addition to it, another action regarding the purported irregular appointment of Mr. Raja Azeem-ul-Haq Minhas, as Executive Director, World Bank has been challenged through CMA No. 5216/2012 in Constitutional Petition No. 6/2011. In this regard, notice was taken by the Court after, certain news reports highlighting the issues surrounding his appointment, promotion, deputation 'etc. It was contended that he did not have'the requisite experience or qualifications for the job and was appointed Executive Director in the World Bank due to political pressure as he was son-in-law of the then Prime Minister, Raja Pervez Ashraf at the time of his appointment to the World Bank.. A-look at his service record reveals that Mr. Minhas was serving as Senior Joint Secretary on a grade, 21 post because of out of turn promotions received by him due to his personal affiliations, with persons who held high political offices, otherwise he was an, officer of the income tax group, working in grade 18 when the PPP government came into power. He left this post and was hired by the EOBI in grade 20 011 2.6.2010 and then went on to hold the Acting-Charge of the post of Director General on BS-21 from 15.02.2012 till 23.05.2012, after which he assumed the-post of Senior Joint Secretary on deputation basis at the Prime Minister Secretariat. To examine these aspects, on 21.2.2013 notices were ordered to be sent to the Establishment Division, Federation of Pakistan to furnish details regarding his' appointment to the World Bank. However, during the course Of such proceedings on 6.6,2013 he resigned from the post of Executive Director, World Bank. , Nevertheless, his appointment in EOBI pursuant to the aforesaid advertisement or otherwise is to be examined like other cases of appointment in order to see whether there was any illegality or irregularity attached to it or it was made in a transparent manner on merit criteria. 11. It will be pertinent to mention here I that in their detailed reply earlier submitted by respondent No. 1, though',- they conceded to certain material illegalities/irregularities committed in the process of appointments by the management of EOBI, still they attempted to defend Mid justify these appointments on the pretext that all individuals were appointed on the basis of recruitment procedure laid down in the relevant rules and regulations. However, due to the qualifications of. Some candidates and urgency in the matter regarding filling up the vacant seats, candidates were only called for interviews, without written test. Such a decision, it was submitted, was not contrary to rule regulation or earlier practice of the EOBI and that it was settled law that. a practice followed persistently by a department itself takes the place of a 'rule'. Furthermore, according to the 'Investment Personnel (Contract Appointment) Regulations, 2007 issued by the Board of Trustees under Section 45 of the Act, it allows selection committees to conduct "interviews or tests". Moreover the respondents strongly challenged the maintainability of the 'petition, protesting that the petitioner had neither pointed towards any fundamental right that was being adversely affected, nor the core requirement of "public interest" was fulfilled as the issue revolved around a restricted group of persons appointed in the EOBI and not in respect of the nation or the public at large. 12. We have heard the arguments of learned ASCs, who are representing different parties to these proceedings as well as for the interveners, and with their assistance carefully perused the bulky case record of these proceedings. As called upon by the Court, the petitioner Syed Mubashar Raza Jaffery in Constitution Petition No. 6 of 2011 and Mr. Tajammal Hussain in HRC No. 48012-P of 2010
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made their respective submissions only to the extent of allegations of illegal appointments in EOBI, which are in line with the contentions raised in their respective petitions. In this regard, they further made reference to several documents as well as applicable service/appointment rules and regulations of EOBI, which were daringly and dishonestly circumvented and violated by the officials of EOBI, at the helm of the affairs at the relevint time. The pith and substance of their arguments vvs `hat whatever grievances they have voiced in the present proceedings, those has been fully substantiated and corroborated from the documents produced by them and the report of fact finding committee on recruitment/appointments constituted by the present management of EOBI, has remained undisputed/uncontroverted, rather conceded by the learned ASC for the official respondents Mr. Saiful Malook, Mirza Waqas Rauf, D.A.G. For the Federation of Pakistan and even learned ASCs for the interveners have not ventured to say much to the contrary regarding the authenticity of such report, except that all this has happened due to change in the management of EOBI. 13. Mr. Abdul Hafeez Pirzada, learned Sr. ASC for the interveners during his arguments firstly stressed upon the humanitarian aspect of the case. According to him it will be highly unjust, unfair and harsh that in case these petitions are allowed so many appointees in the EOBI, who have been performing well to the satisfaction of the institution for many years, for no fault on their part, will now be removed from service and rendered jobless. More particularly, in the circumstances when already percentage of unemployment in the country has reached at a very high level, which is resulting in sheer frustration amongst the educated class of the country. He, however, seriously questioned the maintainability of the petition and H.R.C. Within the ambit of Article 184(3) of the Constitution. According to him, such course, if followed by the Court, will negate the vested rights of the appointees with reference to Articles 4 and 10A of the Constitution, which ensures that every citizen is to be dealt with in accordance with law and has a right to fair trial. In support of his submissions, he placed reliance on the cases of Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 S.C. 724) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 S.C. 600). In the 1st case the apex Court dealt with hundreds of petitions of the employees of Sui Southern Company Limited in relation to their service dispute and in that context also considered the question of discrimination on the yardstick of Article 25 of the Constitution and scope of review under Article 188 of the Constitution. As a result the review petitions were allowed and cases were remanded to the Federal Service Tribunal for decision of their dispute afresh. In the 2nd case, broad principles for invoking jurisdiction of the Supreme Court under Article 184(3) of the Constitution were discussed. It was held that it provided an expeditious and inexpensive remedy for protection of fundamental rights from legislative and executive interference, particularly, in a situation when there is no other adequate remedy and that question of public importance with reference to enforcement of fundament rights was involved. With 'these observations, the petition under Article 184(3) of the Constitution, challenging the vires of 7th Wage Board Award was held not maintainable, as the said award was only valid to the extent of working journalists and did not affect the public-at-large qua fundamental right of speech under Article 19 of the Constitution. 14. In the end Mr. Abdul Hafeez Pirzada reiterated his submission that for the sake of smooth functioning of the institution (EOBI) and to save the families of such appointees from starvation, a lenient view of the matter may be taken as regards the purported irregularities in :their appointments. However, those responsible for such illegalities may be separately taken to task in accordance with law. 15. We have given due consideration to the submissions of the learned Sr. ASC, relating to exercise of our jurisdiction under Article 184(3) of the Constitution, but are in disagreement with him for the reason that the controversy involved in the present petition and connected human rights case is
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clearly within the domain of public interest litigation qua violation of fundamental rights of citizens et large by a public body (EOBI) in the matter of selection and appointments. In such circumstances, it is the respondent No 1 EOBI, whose affairs, are being probed and looked into by the Court and not the individual grievance by or against the appointees, who may be the affectees of the ultimate decision of the Court in these proceedings. As a matter of fact, on 12.9.2013 order for publication of general notice regarding the pendency of these proceedings was passed by this Court in order to afford an opportunity of hearing to the appointees of EOBI, whose appointments are under challenge in these proceedings or who are likely to be affected with the outcome of these proceedings. It was for this reason that office was directed to publish a general notice in few newspapers of were circulation from Islamabad and Karachi, apprising all such employees of EOBI about the pendency of these proceedings 'so that in case, anyone of them has any interest in the fate of these proceedings, may appear and contest the matter. Thus, it was in the larger interest of justice and for the above reason that all the applications of interveners, who are more than 190 in number, were entertained and opportunity of hearing was allowed. Otherwise, they had no independent right to participate in the proceedings of this case or to allege violation of Articles 4 & 10A of the Constitution in their individual cases. If any case-law is needed to fortify this View, reference can be made to the case of Sindh High Court E3ar Association v. Federation of Pakistan (PLD 2009 S.C. 879), wherein the Court while expounding upon the ambit of Article 184(3) settled the law by stating that it is now a well-entrenched principle that the breach of fundamental rights of a "class of persons, who collectively suffer due to such breach, and there does not seem to be any possible relief being granted from any quarter due to their inability to seek or obtain relief, ... Are entitled to file, petition ,under Article 184(3)". Such a view lends full support to the maintainability of the petition as the grievance in hand concerns the rights of more than 23,127 applicants whose applications were passed over due to nepotism and political pressure, in contravention of their fundamental rights enshrined under the Constitution, which in turn also affects the public at large as it calls into question the manner in which the bureaucratic system is being abused by the ruling elite. Such a view is also supported by another case of Syed Mahmood Akthar Naqvi v. Federation of Pakistan (PLO 2013 SC 195) wherein the Court held that as the issue under examination concerned political pressure placed on the civil service by the executive, the petition was maintainable under Article 184(3) as it relates to the infringement of fundamental rights of civil servants under Articles 9, 14 and 18 of the Constitution. It was recognized as being an issue of public importance as the civil service is deemed to be an essential component of the executive arm of the state. Yet another judgment of five member Bench of this Court, which supports the maintainability of this petition under Article 184(3) of the Constitution, is in H.R.C. No. 40927-S of 2012 regarding pensionary benefits of the Judges of Superior Courts (PLD 2013 S.C. 829), wherein combined effect of Articles 184(3), 187 and 138 of the Constitution has been dilated with the observation? That the apex Court has unlimited jurisdiction to set the law correct, to cure injustice, save it from becoming an abuse of the process of law and the judicial system and for this pass any order to foster the cause of justice; eliminating the chances of perpetuating illegality and to save an aggrieved party from being rendered remediless. Thus we have no doubt about the maintainability of this petition and the human rights case and the arguments of learned Sr. ASC Mr. Pirzada as regards the limited scope of Article 184(3) of Constitution are devoid of force. 16: M/s. Sarctar M. Aslam and Athar Minallah, two other learned ASCs for some other appointees/respondents in these proceedings, have adopted the arguments of Mr. Pirzada with their additional submissions that in case an adverse order is passed against the appointees, whose appointments have been assailed in these two cases, their future will be ruined, therefore, a via media may be sorted out to accommodate them at their jobs or at least in the fresh process of selection and appointments in the EOM.
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17. Ch. Afrasiab Khan, learned ASC for Raja Azeem-ul-Haq Minhas has made refPrance to various replies submitted on his behalf in response to C.M.A. No. 5216 of 2012 which. Has been heard together with these petitions and contended that since during the pendency of these proceedings on 6.6.2013 he has resigned from his post in the World Bank, therefore, any further action against him would not be justified. However, as regards the irregularities highlighted by the petitioners in the appointment of Raja Azeem-ul-Haq Minhas in the EOBI qua his rapid promotions and deputation etc., he insisted that there is no such procedural lapse in this regard, which can be termed as illegal or ma/a fide. Mere fact that he is son-in-law of the then Prime Minister Raja Pervaiz Ashraf cannot be taken as his disqualification to hold such high posts or get rapid promotions as it was done solely on merit criteria. However, he did not argue much as to the manner. Of his appointment and frequent promotions in the EOBI as mentioned in the report of fact finding committee, which also forms part of this judgment. 18. Conversely, Mr. Saiful Malook, learned ASC for respondents No. 1 to 3, has uprightly supported the case of petitioners as regards hundreds of illegal appointments made in the EOBI during the period from January, 2009 to May, 2012 and onwards, which are now under challenge in these two petitions or subject-matter of contempt…
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