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Petitioner: PIYAR ALI GADIWAN VS Respondent: PROVINCE OF SINDH through Chief Secretary and 5 others
Court Name: Sindh High Court Judge(s): Munib Akhtar, Syed Hassan Azhar Rizvi Title:PIYAR ALI GADIWAN vs PROVINCE OF SINDH through Chief Secretary and 5
others Case No.: Constitutional Petitions Nos.D-715 and 2094 of 2011 Date of Judgment:2012-03-09 Reported As: 2012 PLC (C.S.) 968 Result: Order accordingly Judgment ORDER ' MUNIB AKHTAR, J.--- This is a case of first impression, requiring consideration and interpretation of the Sindh Water Management Ordinance, 2002 ("2002 Ordinance"). The 2002 Ordinance and its precedent legislation, the Sindh Irrigation and Drainage Authority Act, 1997 ("1997 Act"), represent the first major legislative attempt in Sindh to systematically modernize the regulation and management of water resources and the irrigation system of the Province, from the macro-level down to the actual users who draw irrigation water from watercourses. Previously, the principal law in the field was the Sindh Irrigation Act, 1879 ("1879 . Act", which continues to remain on the statute book). The 1997 Act was the first effort in this regard, but was repealed and replaced within a few years by the 2002 Ordinance. The latter contains a far more elaborately structured mechanism for water resource management. This is attested not merely by its length (which, at 110 sections, is three times that of the 1997 Act) but also by the substantive provisions thereof. One important point to keep in mind is that despite a certain surface similarity, the legal regime and statutory framework created by the 2002 Ordinance is quite different from what had been set up under the 1997 Act. For example, although in many instances the two statutes use the same names to label the various entities and bodies respectively created by them for water and irrigation system management, the legal nature thereof is often radically different. 2. The actual point in issue in these two petitions can be stated briefly and rather narrowly. On the face of it, the petitioners appear simply to challenge the legality of the appointment of the respondents Nos.3 to 5 in C.P. 2094 of 2011 (one of whom is also respondent No,6 in C.P. 715 of 2011) as directors of the various area water boards created by the 2002 Ordinance. (For convenience,
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these respondents are herein after referred to as the "impugned respondents".) However, for reasons that will presently become apparent, in order to properly address this issue, it will be necessary to examine the statutory framework in a broader perspective. The 2002 Ordinance has to be examined in some detail, and a useful aid to this analysis will be a comparison of its provisions with the position that had obtained under the 1997 Act. 3. Before proceeding, further, we may note that since a number of sections of both the 2002 Ordinance and the 1997 Act will be referred to, it has been found convenient to reproduce the relevant provisions in one place and in an appendix to the judgment, rather than in the body hereof. Furthermore, capitalized terms and expressions used herein, but not defined, have the same meaning as in the 2002 Ordinance or the 1997 Act, as the case may be. Some terms and expressions have been defined in both statutes; any such capitalized term or expression used herein has the meaning given to it, and is used in the same sense as, in the 2002 Ordinance, unless otherwise specified. 4. Learned counsel for the petitioners submitted that the petitioners were officers in the Irrigation Department of the Government of Sindh and had been appointed as the director AWB Nara Canal and director AWB Left Bank Canal respectively. They had been so appointed by the Government and had been serving in those posts till 18-4-2011 when they were replaced by means of identical notifications issued under the hand of the Chief Secretary to the Government by two of the impugned respondents (being the respondents Nos.3 and 4 respectively in C.P. No,D-2094 of 2011). The third impugned respondent (the respondent No,5 in the aforesaid petition) was also similarly appointed as director AWB Ghotki at the same time. The notifications stated that the impugned respondents had been appointed as directors of the aforesaid AWBs with the approval of the Chief Minister. Learned counsel for the petitioners submitted that these appointments were contrary to the 2002 Ordinance which laid down the manner in which, and the body by whom, directors of AWBs were to be appointed. Explaining the position, learned counsel submitted that the three AWBs were undergoing development to improve the efficiency and effectiveness of irrigation water distribution and ensure reliability, equity and user satisfaction under a program known as the Sindh Water Sector Improvement Project Phase-1 (hereinafter referred to as "WSIP-1"). This exercise was being funded in part by the World Bank (through its associated entity, the International Development Association or IDA). ;The Food and Agricultural Organization, a body of the United Nations (hereinafter referred to as "FAO") was also involved in the program. Acting under the auspices of FAO, advertisements had been placed by SIDA in the newspapers for the appointment of directors of the AWBs concerned, and it was in completion of this recruitment exercise that the impugned respondents were ultimately notified on 18-4-2011. Learned counsel submitted that this entire exercise was contrary to law and therefore the removal of the petitioners from the posts of directors (and their substitution by the impugned respondents) was liable to be set aside. The petitioners were entitled to be restored to the positions of director from which they had been removed. It was also pointed out by learned counsel that after the impugned notifications of 18-4- 2011, the Irrigation Department had issued a letter dated 10-9-2011, which referred to the appointments of the impugned respondents as directors but noted that although they were required to resign from the Irrigation Department before taking up the said posts they had not done so. Learned counsel submitted that this was a further illegality that had been committed and that therefore, the petitioners were entitled to relief as was being sought by them. 5. Learned counsel for SIDA as also learned A.A.-G. Strongly opposed the petitions and submitted that they were liable to be dismissed. Learned counsel for SIDA referred to various provisions of the 2002 Ordinance in support of his case and these are considered in detail herein below. Explaining the background which led to the appointment of the impugned respondents, learned counsel submitted that the WSIP-1 was proposed in or around April 2007 and ultimately approved when the
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matter was put up before the Executive Committee of the National Economic Council (ECNEC) on 19-9-2007. The project involved a total cost of Rs,10675 million which included a World Bank loan component of Rs,9162.2 million and it was noted that the Government of Sindh would be responsible for reimbursement of the aforesaid loan.Learned counsel also referred to a project appraisal document that was issued by the World Bank on or about 23-8-2007 with regard to WSIP-1. On or about 9-11-2007 an agreement was entered into between the Government of Pakistan and FAO for the appointment of project consultants to provide various services with regard to WSIP-1. As presently relevant, this agreement committed FAO to deploy a team of consultants as project management consultants/procurement agents (referred to in the agreement (and hereinafter) as "PMCA"). Learned counsel for SIDA drew attention to the relevant clauses of the aforesaid agreement which described the scope of work of the PMCA and submitted that the work to be performed by the latter included, inter alia, establishing appropriate terms of reference for the recruitment of directors of the three AWBs concerned (i,e,, Nara Canal, Left Bank Canal and Ghotki). He submitted that under the terms of reference settled by the PMCA, the posts of directors for the three AWBs were ultimately advertised on or about 12-6-2009 in the press. These advertisements gave a detailed description of the job of director and the terms of reference established a detailed, open and transparent method of recruitment. Learned counsel submitted that the method of recruitment required for the candidates to be vetted and short listed and thereafter for the short-listed candidates to be thoroughly interviewed and the final selections made on such basis. He submitted that at all stages the candidates appeared before a high powered team of interviewers, which included members from PMCA, SIDA, AWBs concerned, the Irrigation Department, various other departments of the Government of Sindh and even a nominee of Transparency International Pakistan. It is to be noted that at a meeting held on 21-7-2009, the Chief Minister of Sindh had decided that for the appointment of staff at higher positions in SIDA, his approval would be obtained. Learned counsel submitted that ultimately after the application of the foregoing rigorous selection process, the impugned respondents were selected and were duly approved by the Chief Minister and finally notified on 18-4-2011 by the notifications impugned by means of the present petitions. Learned counsel contended that foregoing procedure was entirely lawful and within the scope and parameters established by the 2002 Ordinance and thus the appointment of the impugned respondents was perfectly regular. However, by way of abundant caution, the names of the impugned respondents were placed before each AWB Board and their appointments were duly ratified by the said Boards. Thus, there could be no grievance or dispute with regard to the appointments of the impugned respondents. Learned counsel also relied on certain case-law that is considered below. 6. Before proceeding further, it will be convenient to reproduce the text of one of the impugned notifications of 18-4-2011 (all three, being identical in all material respects). The notification. For the impugned respondent No, 4 stated as follows:--- "With the approval of Chief Minister, Sindh, Mr: Habib Ursani is hereby appointed as Director, Left Bank Canal, AWB, Badin Irrigation Department, with immediate effect and until further orders vice Mr. Muhammad Khan Nizamani transferred and directed to report to Irrigation and Power Department." Mr. Nizamani is the petitioner in C.P. D-2094 of 2011. 7. Learned A.A.-G. Supported the submissions made by learned counsel for SIDA and further submitted that all the relevant facts were well known to the petitioners at all material times. The petitions had been filed belatedly after the passage of several months from the date of issuance of the impugned notifications on 18-4-2011. Learned counsel submitted that the petitioners had no vested right, or indeed any kind of right at all, to be appointed, or to continue, as directors of the AWBs. If at all the petitioners had been interested in such appointment, they could have
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participated in the selection process that started from the advertisements placed in the press in 2009 as noted above. Admittedly, they had failed to do so and they could not therefore have any grievance with regard to the appointment of the impugned respondents who were appointed in a regular and lawful manner. 8. We have heard learned counsel as above, examined the record with their assistance and considered the case-law that has been relied upon. In order to properly appreciate the relevant provisions of-the 2002 Ordinance and the issues involved in the present petitions, it will be appropriate to begin with a brief overview of the 1997 Act. By section 3 thereof a statutory authority known as the Sindh Irrigation and Drainage Authority was established for the purposes of the said Act, therein referred to as the "Authority". (In order to avoid confusion between this authority and the identically named SIDA established under the 2002 Ordinance, the Authority established under the 1997 Act is hereinafter referred to as the "previous Authority".) The members of the previous Authority were as given in section 4 and as is clear from a bare perusal thereof, these members were almost entirely and exclusively government officials. The day to day management and affairs of the previous Authority were entrusted to a board of management set up by and under section 7. Section 8 provided for the powers of and duties to be performed by the previous Authority. Chapter VI of the 1997 Act dealt with area water boards. Section 23 empowered the Government to notify area water boards, and subsection (2) thereof provided that each board was to consist of a chairman and the members as specified therein, which included also the director of the area water board. Section 25 set forth the duties and functions of area water boards but expressly provided that the same were "subject to control and direction of the Authority". The 1997 Act also provided for the establishment of bodies known as farmers" organizations and these were dealt with in section 26. Section 29 provided that on the commencement of the 1997 Act, all the assets and liabilities and rights and obligations of the Irrigation Wing of the Irrigation and Power Department stood transferred to the previous Authority. Subsection (4) of section 29 expressly provided that the Irrigation and Power Department "will be the controlling department of the Authority on behalf of the Government of Sindh". 9. The 1997 Act was, as noted above, repealed and replaced by the 2002 Ordinance and it is to be noted that section 110 of the latter statute provided for a simple repeal of the former and nothing more. When the relevant provisions of the 2002 Ordinance are compared with those of the 1997 Act, two points immediately stand out. The first is that unlike the 1997 Act, the area water boards (or AWBs) and farmers organizations (or FOs) established under the 2002 Ordinance have a separate legal existence of their own and exist in their own right. SIDA is of course the statutory body created and established by section '3 of the 2002 Ordinance. But section 29, which deals with AWB and section .40 which deals with FOs both provide that these bodies are also to be bodies-corporate, i,e,, have separate legal existence in and of themselves. The second point is with regard to the independence of these. Bodies. Whereas, section 25 of the 1997 Act had expressly provided that the area water boards constituted in terms thereof (which of course did not have any separate or independent legal existence) were to operate under the control and direction of the previous Authority, section 29 of the 2002 Ordinance expressly imposes a duty on each AWB to "exercise independent judgment in the conduct of its own business". An identical provision is to be found in section 40 in relation to the FOs. Indeed, such a provision is to be found in relation to SIDA itself in section 4. 10. It is also important to note that the 2002 Ordinance has no equivalent to section 29(4) of the 1997 Act (noted above). Rather, the 2002 Ordinance establishes a Regulatory Authority, and section 74 provides (in subsection (1)) that the main responsibility of this body (which is also a body corporate having its own independent legal existence) is to "ensure compliance with the statutory provisions laid down" in the statute. Subsection (2) of this section also empowers the Regulatory
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Authority to "promote effective interaction and collaboration between the SIDA, the AWBs, the FOs and their various support bodies" and also, "when invited to do so, [to] arbitrate between them". Section 68 imposes an express statutory duty on the Regulatory Authority to "exercise independent judgment in the conduct of its business". It is also pertinent to note that the Regulatory Authority is to be established by the Governor of Sindh (rather than the Government) and he is to nominate its members, but subject to the advice of a nomination panel specified in section 69, whose advice is binding on him. The composition of the nomination panel shows that it is intended to be independent of the Government. Finally, reference may be made to section 100, which provides that until the Regulatory Authority is set up as envisaged, SIDA itself is to perform its functions. 11. The composition of SIDA is also important. While the previous Authority comprised almost exclusively of Government officials, this is not so in the case of SIDA. As section 5 indicates, the members of SIDA fall into three categories-nominated by Government, elected and ex officio. Three members have to be elected in the manner specified in the section. Even with regard to those members who are to be nominated by the Government, three have to be "independent" academicians, and one a "prominent and relevant agriculturist", preferably a member of a chamber of agriculture operating in Sindh. It is interesting to note that SIDA comprises of 13 members (leaving aside the Managing Director of SIDA, who is its secretary and an advisory member), and of these, the non-government members are seven and thus constitute the majority. A similar, position is to be found in section 30 which relates to the composition of an AWB Board. The Board is to comprise of 10 members (leaving aside the Director of the AWB, who is its secretary and an advisory member) all of whom are either elected (three) or co-opted by the elected and nominated members (four). Of the latter four, three must be "independent" academics, and one a "prominent and relevant industrialist". There are to be two nominated members, of whom one is to be nominated by SIDA and the other (who must be a "prominent and relevant agriculturist") is to be nominated by the local chamber of agriculture. The ex officio member is to be the Naib Nazim or his nominee. Thus, even more so that SIDA itself, the AWB Board is envisaged as being a completely independent body. It is also pertinent to note that subsection (3) of section 30 expressly provides that the chairman and members of an AWB Board shall not have any function in SIDA, and there is an equivalent provision regarding the members of SIDA in relation to AWB Boards. 12. In our view, it is clear both from a reading the 2002 Ordinance as a whole as well as the specific provisions noted above (and further referred to below) that the statute places a great deal of emphasis on, and attaches paramount importance, to the independence of action and decision making by the various bodies and entities that have been established in terms thereof. The point is reinforced by establishing these bodies as separate and independent legal entities, and by the repeated and express use of the word "independent" in different places and various contexts throughout the 2002 Or finance. It is to be noted that this is not merely a matter of a statutory power being granted, but rather a statutory duty being imposed on each entity which, while performing its functions, exercising its powers, discharging its duties and generally acting within the domain established for it by the State, must act independently. This is not of course to suggest that the various entities are to act in disregard of each other. that is clearly not the intent of the 2002 Ordinance. But, and this is of paramount importance, the subservience of area water boards to the previous Authority, and of the latter to the Government, which was the express rule laid down in the 1997 Act is conspicuously absent in the 2002 Ordinance. Rather, the prevalent rule under the latter statute is the exact opposite, and this is emphasized and reinforced throughout. The various entities under the 2002 Ordinance are to act in a complementary manner and may be likened to interlocking parts of an integrated whole, but each part is required and duty bound by the statute to act in its own right and independently take its own decisions. Indeed, it would not be wrong to conclude that the 2002 Ordinance is intended to be a complete code in itself, which is to operate
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without any outside interference or control, including (and perhaps especially) that of the Government. As will presently become clear, this is of paramount, importance in the appointment of the Directors of the AWBs. 13. The appointment of the Director of an AWB is dealt with in the first instance in clause (a) of subsection (2) of section 29. This provides that the "appointment decision" with regard to an AWB shall contain the "appointment of an acting director until a director has been appointed by the AWB Board". The expression "appointment decision" has not been defined in the 2002 Ordinance, but it is clear that it relates to and means the constitution of the AWB and establishment of its territorial jurisdiction by the Government in terms of section 28. Thus, when an AWB is constituted, the Government is authorized to appoint an acting Director, who is to hold office till a Director is appointed by the AWB Board itself. Section 34 provides that each AWB shall have a Board of Management which, "subject to the overall control and guidance of the AWB Board", shall manage the affairs of the AWB. Subsection (2) of this section provides that subsections (2) to (4) of section 12 shall apply, mutatis mutandis, to the Board of Management of an AWB. The latter section establishes a Board of Management for SIDA and provides that SIDA is to have a Board of Management comprising of a Managing Director and a number of General Managers. Subsection (1) of section 34 parallels this provisions since it provides that the Board of Management of an AWB shall be formed by the Director and as many Managers as the AWB may reasonably require for its purposes. Subsections (2) and (3) of section 12 empower SIDA to provide for the qualifications, technical backgrounds and practical experiences required of the Managing Directors and General Managers and to lay down the terms and conditions on which they are to be appointed. By reason of subsection (2) of section 34 therefore, these provisions apply in respect of the Director of an AWB. Thus, the statutory power to appoint the Director of an AWB. To determine and prescribe his qualifications, technical background and practical experience and the terms and conditions of his service vests in an AWB Board. Learned Counsel for SIDA sought to argue that since the Director of an AWB was also an ex officio member of the AWB Board by reason of section 30(1)(k), the said Board was not complete until a Director was appointed and hence the power to appoint the first Director vested in the Government. We find no warrant or provision in the 2002 Ordinance to support any such conclusion, which on the face of it would be rather startling. It is to be noted that in any case the Director of an AWB is only the secretary and an advisory member of the AWB Board. However, more importantly section 39 makes applicable, mutatis mutandis, a number of sections that apply in relation to SIDA also to an AWB. One of the sections so made applicable is section 9 which relates to meetings of SIDA and this section therefore applies to an AWB Board. Subsection (6) of this section provides for the quorum necessary for a meeting and as is clear from this provision, an AWB Board can easily meet and be quorate even in the absence of the Director of the AWB. Section 109 also provides that no action of anybody created by or under the 2002 Ordinance shall be invalid by reason of any vacancy or defect in its membership. It would not therefore be correct to conclude that an AWB Board is incomplete in the absence of the Director of the AWB or cannot act until he is appointed. Furthermore, the interpretation proposed by learned counsel is contrary to section 29(2)(a) already referred to above. This provision clearly limits the power of the Government to appoint an acting Director and leaves no doubt whatsoever that the Director is to be appointed by the AWB Board itself. Finally, the interpretation proposed would negate the independence that is conferred upon and required of each entity or body established under the 2002 Ordinance. This independence, as noted above, is an important and fundamental aspect of the statute and indeed is one of its central and defining concepts. 14. Before proceeding further, it would be pertinent to examine the scope of the Government's power to appoint an acting Director. Up 'to what time can this power be exercised? Is this power exhausted when the Government makes the initial "appointment decision" referred to above, i,e,,
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when the AWB is initially constituted in terms of section 28? If so, then it would follow that the Government has only the power to make the initial appointment of an acting Director, and its power stands exhausted as soon as such appointment is made. Or, does the Government have the power to…
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