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Petitioner: Barrister SARDAR MUHAMMAD VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: Barrister SARDAR MUHAMMAD vs FEDERATION OF PAKISTAN and others Case No.: Writ Petition No:29005 of 2012 Date of Judgment:2013-01-15 Reported As: 2013 PLC (C.S.) 625 Result: Petition allowed
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, J.--- These petitions were allowed through the following Short Order dated 15-1-2013: This short order is being passed in the instant petition, as well as, connected W.P. No,31118 of 2012, wherein the appointment of respondent No,5 (Mr. Farooq Ahmed Awan) as Member/ Chairman PTA has been challenged by the petitioners. (2) For the reasons to be recorded later these petitions are allowed and the appointment of respondent No,5 as Member/Chairman PTA is hereby declared to be without lawful authority. The said respondent is directed to relinquish his post before the close of working hours today. (3) Office is directed to dispatch a copy of this order to the concerned quarters immediately. ' The reasoning behind the Short Order, and the need to issue one, has been elaborately discussed in this judgment. 2. This judgment will decide the instant case, as well as, W.P. No,31118 of 2012 along with C.M No,3 of 2012' as both the petitions raise identical questions of law and facts, while the above application raises the question of maintainability of this instant petition. 3. These petitions assail the appointment of respondent No,5 (i,e, Farooq Ahmed Awan) to the public offices of Member and Chairman of Pakistan Telecommunication Authority ("Authority" or "PTA"). It is contended that respondent No,5 is holding the said offices without lawful authority, hence seeking a writ of quo warrant under Article 199(1)(b)(ii) of the Constitution against the aforesaid respondent. 4. Respondent No,5 was appointed as Member, PTA vide Notification dated 28-7-2012 and then as Chairman PTA vide Notification dated 31-7-2012 issued by the Establishment Division, Cabinet
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Secretariat, Government of Pakistan. The entire process of recruitment, leading to the above Notifications of appointment, has been impugned in these petitions. 5. Learned counsel for the petitioners referred to section 3 of the Pakistan Telecommunication (Re- organization) Act, 1996 ("Act") to contend that the Authority consists of three Members and the post of a Member is for a term of four years and from amongst the Members, the Federal Government appoints a Chairman. In the absence of any rules under the Act, the concerned Divisions of the Federal Government, authorized under the Rules of Business, 1973, have formulated procedures for appointment of Members and Chairmen of the regulatory authorities. In this regard, he referred to OFFICE MEMORANDUM of the Establishment Division, dated 6-2-2003, duly approved by the Prime Minister, whereby a Selection Committee has been constituted for the Appointment of Chairman/Members of Pakistan Telecommunication Authority, NEPRA and OGRA (The Office Memorandum is reproduced in Schedule-I). Similarly, he also referred to the PROCEDURE FOR APPOINTMENT OF CHAIRMAN AND MEMBERS IN REGULATORY AUTHORITIES issued by the Cabinet Division. This Procedure mandates that vacancies can be filled through (i). Advertisement in the Press followed by (ii). Interview by the Selection Committee and finally on the basis of the recommendations of the Selection Committee and the Establishment Division the appointment is (iii). Approved by the Competent Authority i,e, the Prime Minister and notified by the Establishment Division (This Procedure has been reproduced in Schedule-II). 6. It has been vehemently urged before this Court that neither the post of Member, PTA was advertised nor was respondent No,5 ever interviewed by the Selection Committee for appointment to the said post. Without prejudice to the above and for the sake of argument it is submitted that even if the Member stood appointed and assuming that the membership of PTA was complete, appointment to the post of Chairman had to be initiated afresh, the names of all the three Members had to pass through the Selection Committee (mentioned above) and the most suitable person for the job be elected as Chairman, PTA. It is urged that even this process was not adopted in this case. 7. Learned Counsel for the petitioners vehemently submitted that section 3(4) of the Act ensures that the antecedents of the Member are free from any "conflict of interest." A Member cannot have any direct or indirect financial interest or business connection with any person, establishment or firm, which renders telecommunication services in Pakistan or abroad or supplies telecommunication equipment to any telecommunication sector in Pakistan or abroad. Respondent No,5 resigned as the Chairman of Pakistan Telecommunication Company Limited (PTCL), a company rendering telecommunication services in Pakistan, just before his appointment as Member and Chairman, PTA, after having sat on the board of PTCL for several months and after having received a hefty sum of Rs,2.3 million during the year 2012 including US$ 8000 as Chairman's fee per Board meeting. 8. He further contended that Government of Pakistan has majority shareholding in PTCL, which renders telecommunication services in Pakistan, therefore, respondent No,5 being a civil servant representing the Government of Pakistan cannot be appointed as Member or Chairman of PTA as this would glaringly offend section 3(4) of the Act, in as much as, respondent No,5 would pass to have direct/indirect financial interest in the matter. Elaborating the importance of conflict of interest, it is submitted that PTA being a regulator has to be independent and insulated to effectively regulate the telecom sector. "Conflict of interest" introduces a streak of discrimination in the institutional character of a regulator, thereby cracking, its insular image and spoiling the air of fair competition in the market. He submitted that section 3(4) of the Act rests on the collective reading of Articles 9, 18 and 25 of the Constitution, which buttress the need for a "level playing field" in the market. He supported his submissions by placing reliance on Reliance Energy Ltd. And another v. Maharashtra State Road Development Corpn. Ltd. And others (2007) 8 SCC 1, (Para 22),
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Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407), Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others (PLD 1999 SC 57), Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419), Messrs Muhammad Bakhsh & Sons Ltd. And another v. Azhar Wali Muhammad and 11 others (1986 MLD 1870), Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14) and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641). 9. In explaining the scope and nature of writ of quo warranto he submitted that the Court has to see whether the appointment, to public office, was backed by the authority of law and includes the entire process of appointment. He placed reliance on Abdul Jabbar Memon and others (Human Rights Case) (1996 SCMR 1349), Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) and Munawar Ali Pathan v. Province of Sindh through Chief Secretary and 2 others (2011 PLC (C.S.) 785). 10. Learned Deputy Attorney-General ("D.A.-G.") for Pakistan appearing on behalf of respondents Nos.1, 2 and 4, raised preliminary objection that this Court lacks territorial jurisdiction to entertain the matter as cause of action arose in Islamabad and the proper forum for institution of these petitions is the Islamabad High Court. He next contended that this petition is not maintainable under Article 212 of the Constitution as the matter in hand pertains to transfer order of respondent No,5 under section 10 of the Civil Servants Act, 1973 and placed reliance on Peer Muhammad, v. Government of Balochistan through Chief Secretary and ,others (2007 SCMR 54) in support of this submission. He. Also urged that the petitioners have no locus standi to institute the instant petition. 11. Learned D.A.-G., on merits, submitted that respondent No,5 has simply been appointed as Member and then Chairman, PTA through transfer under section 10 of the Civil. Servants Act, 1973, hence, his appointment is not in conflict with the Act. He submitted that the requirement of "conflict of interest" under section 3(4) of the Act arises if the appointment is being made from the private sector and has no application when civil servants are being appointed to the said post. He admitted that respondent No,5 was the Chairman of PTCL but qualified the same by submitting that he was merely an ex-officio Chairman of the Board of PTCL and was not holding the said post when he was appointed as Member/Chairman. He submitted that the requirement of public advertisement to fill the said post is only if Members are inducted from the private sector,and has no application to appointment made from the public sector. He also-submitted that appointment of respondent No,5 is somewhat temporary and is simply to fill the vacuum created because of the retirement of Dr. Muhammad Yasin, the outgoing Chairman. He assured the Court that once the rules are framed under the Act, the appointment shall be made strictly in accordance with the said rules. In the end learned Deputy Attorney-General submitted that respondent No,5 is well qualified for the said post, therefore this case does not call for judicial interference. 12. Messrs Ali Sibtain Fazli and Nasar Ahmed, Advocates for respondents Nos. 3 and 5 also raised preliminary objection regarding territorial' jurisdiction of this court and placed reliance on Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others, (PLD 1966 SC I), LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498) and Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others, (PLD 1997 SC 334). They also submitted that rules under the Act are being framed and the process of appointment will be made strictly according to the rules, implying, like the learned Deputy Attorney-General, that current appointment of respondent No,5 is temporary or a stopgap arrangement.
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13. On merits they submitted that the Federal Government has the executive authority to appoint any person as Member or Chairman of PTA and courts should not interfere in the exercise of this executive authority, which being a policy matter, is not justiciable. In the end, they half heartedly, submitted that notice under Order XXVII-A, C.P.C. Ought to have been issued to the Attorney General for Pakistan as this case involves substantial interpretation of constitutional law. He, however, failed to pin-point the issue before the Court that required substantial interpretation of constitutional law. 14. In rebuttal learned counsel for the petitioners submitted that this Court has the territorial jurisdiction to entertain the matter because the public office held by respondent. No,5 enjoys jurisdiction all over Pakistan and placed reliance on LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), Messrs Sethi & Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (2012 PTD 1869), Asghar Hussain v. The Election Commission of Pakistan, etc. (PLD 1968 SC 387), Messrs Al- Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 1758), Muhammad Idrees v. Goverment of Pakistan through Secretary, Establishment Division, Islamabad and 5 others (1998 PLC (C.S.) 239), Messrs Lucky Cement Limited v. The Central Board of Revenue and others (PLD 2001 Pesh. 7), Khaista Gul v. Akbar Khan and 7 others (PLD 1975 Pesh. 146), Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000 SCMR 1703), Sh. Abdul Sattar Lasi v. Federation of Pakistan and 6 others (2006 CLD 18), Nawabzada Muhammad Shahabuddin v. The Chairman, Federal Land Commission (1996 CLC 539), Gulzar Ahmad Khan v. The 'Chief Election Commissioner of Pakistan, Islamabad and 7 others (PLD 1997 Lahore 643), Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Messrs Ibrahim Fibres Ltd. Through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others (PLD 2009 Karachi 154), Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others (1979 SCMR 555), Zulfiqar Ali Bhutto v. The Federation of Pakistan through the Secretary, Ministry of Interior, Government of Pakistan Islamabad and 4 others (PLD 1980 Karachi 113), Muhammad Shoaib v. Project Director National ICT Scholarship Program, Ministry of Information Technology, Islamabad and another (2011 CLD 23), Sohail Jute Mills (Pvt.) Ltd. Rawalpindi through. Chairman v. Central Board of Revenue, C.B.R. Islamabad through Chairman (1997 CLC 574), Amin Textile Mills (Pvt) Ltd. v. Islamic Republic of Pakistan and 3 others (1988 SCMR 2389) and A.R. Khan & Sons (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others (2010 CLD 1648). 15. Arguments heard. Record perused. PRELIMINARY OBJECTIONS. 16. Learned Deputy Attorney' General representing respondents Nos.1, 2 and 4 has raised the following preliminary objections2: (a) That the transfer/posting order of respondent No.5 (a civil servant) cannot be assailed before this Court in terms of the bar contained under Article 212 of the Constitution and placed reliance on Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54). (b) That the appointment of respondent No.5 under section 10 of the Civil Servants Act, '1.973 has been made by the Competent Authority i.e., the Prime Minister, hence the order is lawful and no interference is called for by this Court in terms of the law, laid down in Lt. Col. (R) Abdul Wajid Malik v. Government of the Punjab and another (2006 SCMR 1360). (c) The petitioner has no locus standi to invoke the constitutional jurisdiction of this Court as no vested right of the petitioner has, been infringed. 17. Learned counsel for respondents Nos.3 and 5 on the other hand, have raised a preliminary
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objection3 that this Court lacks territorial jurisdiction to hear the matter on the ground that all the respondents to the petition are either residing in Islamabad or work for again in Islamabad, therefore, the Islamabad High Court has exclusive jurisdiction to entertain such petition and the Lahore High Court has no jurisdiction in the matter." Territorial Jurisdiction of this Court and scope of writ of Quo Warrantor 18. In order to answer the preliminary objections it is important to understand the nature of relief under Article 199(1)(b)(ii) of the Constitution, traditionally and more popularly referred to as writ of quo warrant. "The quo warrant proceeding affords a judicial remedy by which any person, who holds an independent substantive public office ... A is called upon to show by what right he holds the said office, ... so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from, that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might-be allowed to continue either with the connivance of the executive or by reason of its apathy. 19. The object of this constitutional remedy is to protect the sanctity of the "public office" by safeguarding against unlawful appointments. The constitutional objective appears to be, more institutional. Acting as gatekeepers, the constitutional courts protect the sanctity of a "public office" and, as a result, shield public institutions from usurpers. The constitutional obligation is to ensure that persons selected to man public ' institutions are appointed in accordance with law without the slightest taint of impropriety. It is also a constitutional platform for the "whistle-blowers" to come forward in public interest and raise their concern about wrongdoing within organizations.' The result is that institutions/ organizations are more open and accountable to their employees, shareholders and the greater public in their activities. 20. Article 199 (1)(ii)(b) of the Constitution requires "a person within the territorial jurisdiction of the Court holding .a public office to show under what authority of law he claims to hold office." 'The emphasis is on the. "public office" being held by a person within the territorial jurisdiction of the Court. The sole constitutional concern is to protect the "public office." It is for this reason that these proceedings are not strictly adversarial in nature and can be put into motion by any person (who need not be aggrieved). These proceedings, therefore, carry an inquisitorial rigour to protect the "public office" and, more importantly, the public institution behind it. 21. With this background, it is easier to assess the span of territorial jurisdiction of this Court for the purposes of a writ of quo warranto. The focus is on the jurisdictional locale of the public office rather than the physical presence (i.e., residence or office) of person holding the office. D The process of recruitment and appointment to the "public office" is under judicial review, therefore, geographical location of the individual Holding the said office is of little significance. The real test is to see the geographical extent of the jurisdiction enjoyed by the "public office." In this case the Act being a federal law, the three Members including the Chairman, exercise jurisdiction nationwide. The physical location of the place of work or residence of the "person" holding public office is insignificant and the territorial jurisdiction of the "public office" under the law is relevant. In the instant case, the appointment to public offices of Members and Chairman of PTA can, therefore, be challenged in any High Court in Pakistan. The following example further explains this point: Person A is appointed as Chairman, PTA, who is a resident of Quetta, Balochistan. Person B is appointed as Chairman, PTA and is an overseas ;Pakistani, with no permanent residential address in Pakistan. Does it mean that writ of quo warranto against person A lies only before Balochistan High Court? While no High Court in the country can issue a writ against person B? The answer is a resounding
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"No," Only the jurisdictional extent of the "public office" under the law is to be seen to determine its territorial, jurisdiction. 22. Even if the Act provided that the head office of Chairman PTA is in Islamabad it would still make no difference because the test is the territorial jurisdiction of the public office. The geographical jurisdiction of the "public office" is determined under the law that establishes the said public office. It is the same law that helps determine whether the public office falls with the territorial jurisdiction of a particular High Court. No person can be deprived of the constitutional remedy of quo warranto, under Article 199 of the Constitution, against a statutory or public sector institution that operates nationwide, on mere cosmetics and technicalities like the location of the place of work, head office or the residence of the incumbent to the public office. 23. In the present case Members and Chairman PTA enjoy nationwide jurisdiction hence a nation- wide presence. These public offices, therefore, fall within the territorial jurisdiction of every High Court in the country. It would be different if the public office belonged to a provincial publie or statutory authority with its jurisdiction limited to a Province. In such a case, the public offices of the said authority, will fall within the territorial jurisdiction of the High Court of the relevant Province. The foundational concept of territorial jurisdiction for the purposes of Article 199 has already been deliberated in detail in Messrs Sethi & Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (2012 PTD 1869) and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498). The reasoning and logic of the above judgments has been simply extended to the writ of quo warranto. Bar under Article 212 of the Constitution. 24. The second preliminary objection is regarding the bar contained in Article 212 of the Constitution to the effect that the appointment through transfer of respondent No,5 have been impugned in these petitions which relate to the terms and conditions of service of a Civil Servant (respondent No,5). This objection is hopelessly misconceived. Article 212 is attracted only if the concerned Service Tribunal has the jurisdiction to entertain the appeal under section 4 of the Service Tribunals Act, 1973 ("STA") (see Article 212(2)). Under section 4 of the STA, only a Civil Servant aggrieved can agitate a matter before the Service Tribunal. In the present case the transferee and appointee i,e,., respondent No,5 is not aggrieved of his transfer/posting order but a member of the general public is.. Hence, Article 212 is not attracted in this case. Locus Standi. 25. Third preliminary objection raised by the learned DAG is that the petitioners have no locus standi to institute this petition. This objection is equally misconceived, as there is no requirement of an "aggrieved person" for maintaining a writ of quo warranto under Article 199(1)(b)(ii) of the Constitution. As discussed later in the judgment, a "whistle blower" need not be personally aggrieved in the strict sense. Order 27-A, C.P. C. 26. At the fag end of the arguments, learned counsel for respondents Nos.3 and 5, somewhat gingerly, raised an objection that notice under Order XXVII-A, C.P.C. Is required to be issued to the Attorney-General for Pakistan when substantial question as to interpretation of constitutional law arise in the case. He, however, failed to pinpoint the substantial question of interpretation of constitutional law raised in this case. Be that as it may, neither the constitutionality of any statute nor any substantial interpretation of the Constitution is under discussion in this case. The scope of this petition is restricted to judicial review of the 'process of appointment of respondent No,5 to the public offices of Member and Chairman, PTA. The question of territorial jurisdiction has already been decided by this Court in the above cited judgments and the same ratio has been extended to
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the present case without any substantial interpretation of the Constitution. This objection is, therefore, misplaced and hence overruled. ON MERITS. 27. Brief facts as culled out from different documents on the record including summaries of the Cabinet Division, Notes put up by the Establishment Division, the approval of the Competent Authority the Prime Minister and the subsequent Notifications appointment. The learned D.A.-G: or the learned counsel for respondents Nos.3 and 5 has not disputed these documents. The narrative hereunder is, therefore, the admitted factual position between the parties. Appointment process of respondent No.5. 28. The chronological account of the mode and manner of appointment of respondent No.5 as Member and then Chairman PTA is as follow:--- (a) On 20-7-2012 'a Summary6 for the Prime Minister was prepared by Secretary, Cabinet Division, Government of Pakistan, titled: "ASSIGNING THE RESPONSIBILITIES OF CHAIRMAN PTA TO MR. KHAWAR SIDDIQUE KHOKHAR, MEMBER (TECHNICAL)." This. Summary recommended that as the tenure of Dr. Muhammad Yaseen, ex-Chairman PTA is expiring on 23-7-2012, therefore, Mr. Khawar Siddiqui Khokhar be made the acting Chairman. The relevant extract is as follows:--- "4. For smooth working of PTA, Cabinet Division recommends that Mr. Khawar Siddique Khokhar, Member (Technical) may be allowed to Act as Chairman PTA till further orders or. appointment…
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