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Petitioner: Dr. Farzana Bari VS Respondent: Ministry of Law, Justice and Human Rights and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Dr. Farzana Bari vs Ministry of Law, Justice and Human Rights and others Case No.: W.P.No.3766/2016 Date of Judgment:2018-02-06 Reported As: 2018 [M] C.L.R. 541, PLD 2018 Islamabad 127, 2018 IHC 12 Result: Petition Allowed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner , Dr. Farzana Bari, has called in question the appointment of Ms. Khawar Mumtaz ("Ms. Mumtaz") as the Chairperson of the National Commission on the Status of Women ("NCSW"), through notification dated 13.10.2 016, issued by Ministry of Law, Justice and Human Rights ("respondent No.1").The said writ petition is in the nature of quo warranto. The petitioner 's grievance is that Ms. Mumtaz was appointed in violation of the procedure prescribed in the National Commission on the Status of W omen Act, 2012 ("NCSW Act"). 2. The petitioner is a Director at the Centre of Excellence for Gender Studies at Quaid-e-Azam University , Islamabad, and a well known human rights' activist. The petitioner was one of the candidates whose credentials were examined by respondent No.1 in order to determine her suitability for appointment as the Chairperson of NCSW . CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 3. Mr. M. Shoaib Razzaq, Advocate, learned counsel for the petitioner submitted that Ms. Mumtaz had already completed a term of three years as the Chairperson of NCSW, and that her re appointment was not made in a transparent manner; that nominations and appointments in statutory bodies are required to be made strictly in accordance with the law; that the executive cannot exercise authority in a monarchical fashion and punish those who resist usurpation of their due and lawful rights; that the fundamental rights of the public at large had been violated by Ms. Mumtaz's re-appointment as the Chairperson of NCSW; that the executive functionaries had acted in a discriminatory manner by making the said appointment in violation of the procedure prescribed in Section 4 of the NCSW Act; and that in appointing Ms. Mumtaz as the Chairperson of NCSW, the Federal Government had committed procedural irregularities, which had adversely affected the rights of the other suitable candidates especially that of Dr. Farzana Bari, who had obtained more marks than Ms. Mumtaz in the merit list initially prepared by respondent No.1.
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4. Furthermore, it was submitted that a committee constituted by the Prime Minister considered the Curriculum Vitae ("C.Vs") of the eligible candidates, and devised a different grading system under which highest marks were given to Ms. Mumtaz; that since Ms. Mumtaz was more than 70 years of age, she could not be appointed as the Chairperson of NCSW; that notification dated 09.10.2007 provides that a person more than sixty-five years of age cannot be appointed as head of a statutory body; and that Ms. Mumtaz was appointed as the Chairperson of NCSW due to her influential background. Learned counsel for the petitioner prayed for the writ petition to be allowed and for the impugned notification dated 13.10.2016 to be set-aside. CONTENTIONS OF THE LEARNED ADDITIONAL ATTORNEY-GENERAL:- 5. On the other hand, learned Additional Attorney-General ("A.A-G.") submitted that the appointment of Ms. Mumtaz as the Chairperson of NCSW was strictly in accordance with the provisions of the NSCW Act; that through public notices published in several newspapers, suggestions were invited by respondent No.1 for filling the position of the Chairperson of NCSW; that respondent No.1, vide notification dated 14.09.2015, constituted a committee to "scrutinize the suitable person" for appointment as the Chairperson of NCSW; that in the meeting held under the aegis of the Special Assistant to the Prime Minister, it was decided to submit a list of seven eligible candidates to the Prime Minister and the Leader of the Opposition for consideration; that the Ministry of Human Rights, on 17.12.2015, submitted a summary to the Prime Minister with the list of seven eligible candidates; that the list of the eligible candidates in the said summary was not in order of merit, but in an alphabetical order; that along with the said summary, a statement regarding the candidates' qualifications and experience along with their CVs was also submitted; and that in the said summary, the Prime Minister was requested to select three names in consultation with the Leader of the Opposition for recommendations to the Parliamentary Committee in terms of Section 4(2) of the NCSW Act. 6. It was further submitted that on 09.05.2016, the Secretary to the Prime Minister noted that the pending summary regarding the appointment of the Chairperson of NCSW could not be traced; that the Ministry of Human Rights was required to immediately resubmit the said summary or to initiate a fresh summary through the Law and Justice Division giving complete details and options; that for the said purpose, the Prime Minister constituted a seven-member committee headed by the Minister for Law and Justice; that on 16.05.2016, the Prime Minister asked for the resubmission of a summary regarding the appointment of the Chairperson of NCSW with recommendations of the committee which had been constituted on 09.05.2016; that vide notification dated 10.05.2016, issued by the Ministry of Human Rights, a seven-member committee headed by the Federal Minister for Law and Justice was constituted to scrutinize the CVs and finalize the recommendations for the appointment of the Chairperson of NCSW; that on 30.06.2016, the Ministry of Human Rights, informed the Secretary to the Prime Minister that the committee constituted by the Prime Minister had examined the earlier summary submitted on 17.12.2015 by Ministry of Human Rights for the appointment of the Chairperson of NCSW, and that it did not agree with the weightage which had been assigned for academic qualifications and experience of the candidates; that the committee decided that there should be no discrimination against the holders of local degrees; that the said committee decided to give a different weightage to academic qualifications and documented experience than the one given by respondent No.1 before submitting the initial summary to the Prime Minister; that the said committee reassessed the eligible candidates and submitted a list of eligible candidates in order of their suitability for the consideration of the Prime Minister; that in the said list of eligible candidates, Ms. Mumtaz ranked at serial No.1; that the said committee recommended that the Prime Minister may consider the nominees prefe rably in the order of ranking for further consultation with the Leader of the Opposition; that vide letter dated 22.09.2 016, the Secretary to the Prime Minister informed the Speaker , National Assembly , that three names (Ms. Khawar Mumtaz, Professor Dr. Farkhanda Zia, and Ms. Huma Akhtar Chughtai) had been agreed between the Prime Minister and the Leader of the Opposition for consideration of the Parliamentary Committee of the National Assembly; that on 05.10.2016, the Parliamentary Committee on the Appointment of the Chairperson of NCSW considered the said three names and confirmed the name of Ms. Mumtaz for appointment as the Chairperson of NCSW ; and that vide impugned notification dated 13.10.2016, Ms. Mumtaz was appointed as the Chairperson of NCSW . Furthermore, the learned A.A-G. submitted that since there had been no violation in the process for the appointment of Ms. Mumtaz as the Chairperson of NCSW , the writ petitions were liable to be dismissed.
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CONTENTIONS OF THE LEARNED COUNSEL OF MS. KHAWAR MUMTAZ (RESPONDENT NO.3):- 7. Mr. Salman Akram Raja, ASC, learned counsel for Ms. Mumtaz, submitted that the petitioner had misunderstood the three-step procedure provided in Section 4 of the NCSW Act for the selection of the Chairperson of NCSW ; that each step of the said process has been properly followed before Ms. Mumtaz was appointed as the Chairperson of NCSW ; that Dr. Farzana Bari could not have instituted a writ of quo warranto against Ms. Mumtaz since she was one of the candidates for the post of Chairperson of NCSW and was, therefore, an interested party having a direct interest in the appointment; that in the case of Muhammad Yasin Saqib Vs. Chairman, Pakistan Telecommunication Corporation, Islamabad (2003 PLC (C.S.) 1105), it has been held inter-alia that a writ of quo warranto is not maintainable if it has been filed by a party who was directly affected by the appointment under challenge; that in the cases of Muhammad Liaquat Munir Rao Vs. Shams-ud-Din (2004 PLC (C.S.) 1328 ), and Dr. Azim-ur-Rehman Meo Vs. Government of Sindh (2004 SCMR 1299 ), the Hon'ble Supreme Court had held inter-alia that writs of quo warranto cannot be issued as a matter of course and that the High Court would be entitled to look into the conduct, motive and lack of bonafides of the petitioner for the purpose of granting or refusing relief in exercise of its discretionary jurisdiction. 8. It was further submitted that Ms. Mumtaz was qualified to be appointed as the Chairperson of NCSW because she was a lady with experience of working on issues related to women's rights for more than fifteen years, and was committed to the cause of women's empowerment; that respondent No.1, after proper scrutiny, had submitted a list of suitable persons to the Prime Minister and the Leader of the Opposition for onward reference to the Parliamentary Committee; that the Federal Government scrutinized each candidate in order to check whether they met the criteria prescribed in Section 3(2)(a) of the NCSW Act, 2012; that respondent No.1 was not required by the statute to send any sort of a merit list to the Prime Minister and the Leader of the Opposition; that the Federal Government forwarded seven names (including Dr. Bari and Ms. Mumtaz) for the consideration of the Prime Minister and the Leader of the Opposition in terms of Section 4(1) of the NCSW Act; that it was the discretion of the Prime Minister and the Leader of Opposition to select three names out of the list forwarded to them by the Federal Government; that after the list of qualified candidates had been sent by the Federal Government to the Prime Minister, the latter constituted an advisory committee on an ad-hoc basis in order to assist him in selecting three names out of the list of qualified candidates submitted by respondent No.1; that the mandate of the said committee was not statutory in nature; that the recommendations of the advisory committee were lawful and valid; and that the Prime Minister and the advisory committee had full discretion and was at liberty to devise a new criteria for scrutinizing the credentials of the candidates for the position of the Chairperson of NCSW. 9. Furthermore, it was submitted that this Court cannot substitute its own opinion with the one formed by the advisory committee; that in the case of Dr. Mir Alam Jan Vs. Dr. Muhammad Shahzad (2008 SCMR 960), it has been held that the Court cannot substitute its own opinion for that of a regulatory authority or a selection committee unless malafide, bias or error of judgment were floating on the surface of the record; that the criteria devised by the advisory committee cannot be termed as arbitrary or in violation of the statute; that the advisory committee was justified in allocating marks for the candidates' qualifications and experience; that the Leader of the Opposition did not object to any of the three names proposed by the Prime Minister for onward submission to the Parliamentary Committee; that it is not disputed that the Prime Minister and the Leader of the Opposition had agreed on the three names to be forwarded to the Parliamentary Committee; that there is no dispute as to the legality of the deliberations of the Parliamentary Committee which nominated Ms. Mumtaz for appointment as the Chairperson of NCSW; that the provisions of the NCSW Act do not provide for an upper age limit for the appointment of the Chairperson of NCSW; and that it is not disputed that Ms. Mumtaz is more than sixty-five years of age, but the notification dated 09.10.2007 cannot override the provisions of the NCSW Act, 2012. Learned counsel prayed for the writ petition to be dismissed. 10. I have heard the contentions of the learned counsel for the contesting parties with great interest and keenness, and have perused the record with their able assistance. 11. Learned counsel for Ms. Mumtaz raised an objection to the maintainability of the petition on the ground that since the petitioner was one of the candidates for the position of Chairperson of NCSW and was, therefore,
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personally aggrieved by the appointment of Ms. Mumtaz against the said position, the writ petition filed by her was not maintainable. 12. The law appears to be well settled that writs of habeas corpus and quo warranto stand on a different footing from other writs like writs of mandamus, certiorari and prohibition. Insofar as writs of mandamus, certiorari and prohibition are concerned, it is necessary that the right sought to be enforced should ordinarily be a personal or individual right of the individual petitioner. The aforesaid rule has been relaxed or modified in case of writs of habeas corpus and quo warranto. Insofar as the writ of quo warranto is concerned, the Courts have taken the view that any member of the public could sue if he had no private interest to serve and that it was for the public advantage. Reference in this regard may be made to the following case law:- (i) In the case of Hafiz Hamdullah Vs. Saifullah Khan ( PLD 2007 SC 52 ), it has been held as follows:- "A writ of the quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. Its object is to determine the legality of the holder of a statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto the Court would be under an obligation to enquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office. For issuance of a writ of quo warranto the person invoking the jurisdiction of the High Court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for brining himself within the meaning of an aggrieved person. Any person can move the High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke the constitutional jurisdiction under Article 199 of the Constitution in a manner as generally required by the said Article." (Emphasis added) (ii) In the case of Dr. Azim-ur-Rehman Meo Vs. Government of Sindh (2004 SCMR 1299 ), it has been held as follows:- "There is no cavil with the proposition that in respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub-clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority ." (iii) In the case of Nazar Aslam Vs. Federal Government and six others (2013 PLC (C.S.) 974), this Court has held that if there were any violations of rules or statutes in making the appointment of the Chairperson of a statutory body, anybody can point out those illegalities and can approach the Court for the issuance of writ of quo warranto. Law to the said effect has also been laid down by the Hon'ble Supreme Court in the cases of M.U.A. Khan Vs. Rana Muhammad Sultan (PLD 1974 SC 228), Al Jahad Trust through Raees-ul-Mujahidin HabibulWahabulKhairi Vs. Federation of Pakistan (PLD 1996 SC 324), Malik Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161) and Captain retired Muhammad NaseemEjazi Vs. Province of Punjab (2000 SCMR 1720). Therefore, the said objection raised by the learned counsel for Ms. Mumtaz is spurned. 13. As mentioned above, it is well settled that in order to maintain a writ of quo warranto , the petitioner need not be an aggrieved person. This does not imply that a writ of quo warranto filed by a person aggrieved by the appointment of a public office holder would not be maintainable if the essential ingredients for the issuance of such a writ was satisfied in a particular case. True, in the cases of Mudassar Hassan Rana Vs. The Federal Government (2017 PLC (C.S.) 1342), Muhammad Shahid Akram Vs. Government of Punjab (2016 PLC (C.S.) 1335), and Barrister Sardar Muhammad Vs. Federation of Pakistan (2013 PLC (C.S.) 625), it has been held that a writ of quo warranto was not maintainable on behalf of a person whose personal interest was involved in the matter. I cannot bring myself to agree with the view expressed in the said judgments. Article 199(1)(b)(ii) of the Constitution provides that that a writ of quo warranto can be filed by "any person". An "aggrieved person" cannot be excluded from the ambit or meaning of "any person". If a writ petition filed by a contestant for a public office against the public office holder is held not to be maintainable, would such a
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contestant have to look for a person who is not personally aggrieved by the appointment under challenge and file a writ petition through such a surrogate or will he/she have to simply swallow the fact that there were violations in the appointment process? I have not found anything inequitable in the petitioner's conduct and motive in filing the writ petition. Her learned counsel had emphasized that the petitioner was interested in the process for the appointment of the Chairperson of NCSW to be carried out strictly in accordance with the procedure prescribed in Section 4 of the NCSW Act. Such an interest did not disentitle Dr. Bari from filing a writ of quo warranto against Ms. Mumtaz's appointment. Therefore, the said objection raised by the learned counsel for Ms. Mumtaz is rejected. 14. NCSW was constituted by the Federal Government under the provisions of the NCSW Act for the promotion of social, economic, political and legal rights of women as provided in the Constitution of the Islamic Republic of Pakistan, 1973, and in accordance with international declarations, conventions, treaties, covenants and agreements relating to women including the Convention on the Elimination of all forms of Discrimination Against Women. The procedure for the appointment of the Chairperson of NCSW is provided in Section 4 of the NCSW Act. Since the petitioner's grievance is that Ms. Mumtaz has been appointed as the Chairperson of NCSW in violation of the procedure prescribed in Section 4 of the NCSW Act, 2012, it is essential to reproduce the said Section herein below:- "4. Appointment of Chairperson.---(1) The Federal Government shall through public notice, invite suggestions for suitable persons for appointment as Chairperson and, after proper scrutiny , shall submit a list of those persons to the Prime Minister and the Leader of the Opposition in the National Assembly . (2) The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly forward three names for Chairperson to a Parliamentary Committee for hearing and confirmation of any one person: Provided that in case there is no consen sus between the Prime Minister and the Leader of the Opposition, each shall forward separate list to the Parliamentary Committee. (3) The Parliamentary Committee shall be constituted by the Speaker of the National Assembly and shall comprise fifty per cent members from the treasury benches and fifty per cent from the opposition parties, based on their strength in Majlis-e Shoora (Parliament), to be nominated by the respective Parliamentary Leaders: Provided that the total strength of the Parliamentary Committee shall not exceed twelve members out of which one- third shall be from the Senate. (4) The Parliamentary Committee shall regulate its own procedure. (5) The Parliamentary Committee shall forward the name of the nominee confirmed by it to the Prime Minister , who shall appoint the Chairperson accor dingly ." (Emphasis added) 15. The record shows that on 22.12.2012, Ms. Mumtaz was appointed as the Chairperson of NCSW. Since she assumed the charge of her office on 01.01.2013, her three-year term was due to expire on 01.01.2016. In terms of Section 4(1) of the NCSW Act, respondent No.1 (Ministry of Law, Justice and Human Rights) issued public notices on 21.06.2016 inviting suggestions and recommendations for the appointment of a suitable person as the Chairperson of NCSW for a term of three-years. Vide notification dated 14.09.2015, issued by the respondent No.1, a five-member committee was constituted "to scrutinize the suitable person" for appointment as the Chairperson of the NCSW. In response to the said public notice, thirteen persons submitted their credentials to respondent No.1. Out of these thirteen candidates, six were found to be ineligible on account of insufficient work experience. The credentials of the remaining seven candidates were scrutinized by respondent No.1, which had devised a grading system whereunder marks were allocated to each candidate under the heads of (i) qualification, (ii) 15 years experience related to women (iii) experience in administration and finance, (iv) research/consultancies in gender and human rights, (v) publications (i.e. articles/books) on gender related human rights issues, and (vi) representation at the local and international level. 16. The marks given by respondent No.1 to each of the seven candidates found to be eligible were as follows:- 1.Dr. Fauzia Saeed 39 Marks 2.Dr. Farzana Bari 37 Marks 3.Ms. Khawar Mumtaz 32 Marks
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4.Ms. Huma Akhtar Chughtai 32 Marks 5.Dr. Farkhanda Zia 28 Marks 6.Ms. Rehana Hashmi 25 Marks 7.Ms. Sofia Noreen 25 Marks
17. Section 4 of the NCSW Act only required the respondent No.1/Federal Government to submit the list of suitable persons for appointment as the Chairperson of NCSW after proper scrutiny. The law did not require respondent No.1 to give grades or marks to the candidates. Any such grading or marks given to the candidates by respondent No.1 was an exercise not required by the statute. Under Section 3(2)(a) of the NCSW Act, 2012, the Chairperson of NCSW was required to be a women with experience of working on issues related to women's rights for more than 15 years, and was committed to the cause of women's empowerment. Therefore, all that respondent No.1 was required to do was to submit to the Prime Minister and the Leader of the Opposition, a list of suitable persons with experience of working on issues related to women' s rights for more than fifteen years, and were committed to the cause of women' s empowerment. 18. As regards the appointment process for the Chairperson of NCSW envisaged by Section 4 of the NCSW Act, 2012, the role of the Prime Minister comes into play after the Federal Government submits a list of qualified candidates for the said post to the Prime Minister and the Leader of the Opposition. It is not disputed that vide summary dated 17.12.2015, respondent No.1 forwarded the names of all the seven eligible candidates to the Prime Minister in terms of Section 4(1) of the NCSW Act, 2012. This list was also forwarded to the Leader of the Opposition. 19. The admitted position is that the names of the seven eligible candidates forwarded by respondent No.1 to the Prime Minister and the Leader of the Opposition were not in order of merit. The statement of the seven eligible candidates indicating their names, qualifications, experience and CVs were also sent along with the said summary. Since Section 4(1) of the NCSW Act does not require respondent No.1 to forward the list of eligible candidates to the Prime Minister and the Leader of the Opposition in order of merit (as determined by respondent No.1), no illegality was committed by respondent No.1 by not forwarding the names of the eligible candidates in order of merit. In the summary dated 17.12.2015, it is explicitly stated that all seven candidates had been found to be eligible for the position of Chairperson of NCSW. 20. The contention of the learned A.A-G. that these names were not…
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