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Petitioner: MUHAMMAD TARIQ MALIK VS Respondent: PAKISTAN
Court Name: Islamabad High Court Judge(s): Noor-Ul-Haq N. Qureshi Title: MUHAMMAD TARIQ MALIK vs PAKISTAN Case No.: Writ Petition No,4451 of 2013 Date of Judgment:2014-01-13 Reported As: 2014 C.L.R. 487, PLD 2014 Islamabad 38, 2014 PLC (C.S.) 685 Result: Petition allowed
JUDGMENT
JUDGMENT ' NOOR-UL-HAQ N. QURESHI, J.--- Compendious facts of this constitutional petition are that in pursuant to the provisions of section 3 of the National Database and Registration Authority Ordinance, 2000 (hereinafter referred to as NADRA Ordinance), vide Notification dated 17-7-2012, the petitioner was appointed as the Chairman of National Database and Registration Authority ("NADRA"). Previously, the petitioner had been working in NADRA initially against the post of General Manager Networks and then for the most part, as Deputy Chairman, NADRA. He was also appointed as Member of NADRA under Section 3(3) of NADRA Ordinance. As such, the petitioner possessed intimate practical knowledge and hands-on technical and operational experience of NADRA's projects and functioning before becoming Chairman NADRA. 2. The petitioner has throughout been a thorough professional holding Master degrees in Computer Science from Quaid-e-Azam University, Islamabad and in International Management from Schiller International University, Heidelberg Germany. He also got trainings at JFK School of Government Harvard University, Massachusetts and Stanford University, California USA. The petitioner has been working in the areas of strategic project management of Technology, IT governance, systems, analysis, design, software development and business process re-engineering for over 20 years in Pakistan and abroad. With direct relevance of these fields with NADRA's functioning and profile as one of the largest information and communication technology organizations in the country operating projects both nationally and internationally, NADRA stands to benefit, and has in fact tremendously benefited, from the petitioner's knowledge and experience in the aforesaid fields. The petitioner has been directly managing important national and international projects of NADRA in an effective and efficient manner. His contribution has been acknowledged both locally and
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internationally. It is further maintained that under the petitioner's leadership NADRA has acquired an established international profile as one of the top few organizations globally in the fields of information and communication Technology (ICT) and Homeland Security Solutions. NADRA has developed passport issuance system of Kenya, Identity Management System of Nigeria, Driving License System of Bangladesh, Civil Registration System of Sudan, Refugee Registration System of UNHCR and Poverty Score Card for World Bank. While successfully undertaking international projects in African countries like Nigeria Sudan etc, the petitioner has been keenly competing abroad for more projects for NADRA to earn valuable foreign exchange for the country. It is further alleged that NADRA is a self-reliant organization with no financial support received form the Federal government. It is one of the most profitable organizations in Pakistan. 3. The petitioner won international business for NADRA despite an internationally unhelpful image of Pakistan. That the petitioner being head of NADRA, which is an organization vested with the lawful custody of the entire citizenry's personal data always held the security and protection of this data close to his heart. As Deputy Chairman NADRA and Chairman NADRA, the petitioner took various personal initiatives to enhance data protection in NADRA's system and database, which are mentioned in para No,12 (a to j) of the petition. It is also asserted that former government of ex- President Pervez Musharraf allowed a USA made system known as PISCES installed at Pakistani International Airports after 9/11 attacks under USA's pressure. The system was sending Pakistani passengers' detailed information to the USA. The petitioner took initiative and indigenously designed, developed and successfully deployed an Integrated Board Management System (IBMS) according to Pakistani immigration laws and booted the US system out. 4. The petitioner is a son of the soil and patriotism and love of motherland runs in his blood through his very upbringing. His father Professor Fateh Muhammad Malik is a staunch nationalist. The petitioner was also awarded the prestigious Civil Award of Sitara-e-Imtiaz by the Federal Government. The petitioner has an unblemished career having served, honestly and dedicatedly wherever he has been. He has also achieved eminence and a reputation of integrity. The petitioner also effectively led and managed the Electoral Rolls project which was outsourced to NADRA by the Election Commission of Pakistan. That ever since the Election Tribunals all over the country have started referring to NADRA the counterfoils of ballot papers and Electoral Rolls in different constituencies of National and Provincial Assemblies for verification of the thumb impressions affixed thereon. There have been several attempts to put pressure on the petitioner by means of threats by anonymous callers on phone as well as in writing, which have also been reported to the Ministry of Interior and even got published in the news media very recently. In view of this backdrop, the petitioner has had legitimate expectancy of finishing his 3 years term of office as Chairman NADRA prescribed in section 3 of NADRA Ordinance, but all of sudden on 2-12-2013 the petitioner was informed late in the evening about the sudden premature termination of his 3 years terms of office by respondent No,1 together with direction to respondent No,2 to look after the charge of the petitioner's office till the appointment of a regular incumbent. Feeling aggrieved the petitioner has preferred .the instant Constitutional Petition and seeks the setting aside of the two notifications issued by respondent No, 1. The prayer, made is repeated as under:--- "It is, therefore, humbly prayed that the respondent No,l's two impugned Notifications both bearing No,1/79/2004-E-6 dated 2-12-2013 may kindly be declared to have been issued without lawful authority an of no legal effect and be set aside." 5. Per contra, respondents Nos. 1 and 2 opposed the petition tooth and nail by filing separate written comments. 6. In support of petition, learned counsel for the petitioner contended that this case is so simple of the illegal removal of officer, whose tenure is secured by the statute, but the Government is trying to convert it into big and sensitive issue. The appointment and removal of Chairman NADRA is
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governed strictly by the provisions of NADRA Ordinance. It is to be seen that how the petitioner was appointed. In this regard he has drawn the attention towards the document i.e, Minute Sheet (HR Directorate), wherein it is mentioned that "After interviewing the candidate, the board. unanimously agreed on the selection of Mr. Muhammad Tariq Malik as "General Manager Networks" at Rs,385,000 p.m. in T-10 Scale in Networks Dte. HQ, NADRA Islamabad". He also referred document having subject of "Selection of General Manager Networks in Networks Dte, HQ NADRA, which shows that salary of the petitioner as General Manager was fixed as Rs,385,000 per month. He referred the letter of appointment of the petitioner on contract basis as General Manager dated 27-5-2008 and also read its clause 14, wherein it is provided that "the appointment during the period of contract shall be liable to be terminated on thirty days notice on either side or paym ent of pay in lieu thereof, without assigning any reason." It is contended that then the petitioner was brought to board as Additional Ex-officio member in NADRA under section 3(3) of the National Database and Registration Authority Ordinance, 2000 and in this regard no additional salary was given to the petitioner. It is added that then the petitioner was appointed as Deputy Chairman NADRA under section 35 of NADRA Ordinance, 2000 and Regulation 8(3) of the NADRA Employees Service Regulation, 2002 by the competent authority vide office order dated 18-8-2008 and his terms and conditions are contained in letter dated 26-9-2008, which shows that his pay scale was T-11 (equivalent to BPS-21), but vide letter dated 31-10-2008 this appointment was objected to by the Ministry of Interior. This letter was replied by the NADRA through letter dated 7-11- 2008 informing the Ministry of Interior that the post of Deputy Chairman was created under section 35 of the NADRA Ordinance, 2000 and Chapter 2, section 4 of NADRA Employees (Service) Regulation, 2002. 7. It was further apprised in the said letter that the emoluments of the position of Deputy Chairman have been arrived at keeping in view the hierarchical level of the position, pay structure of the organization and the market salary being offered by the other public/private sector organizations to professionals with the same level of education, experience and exposure at such positions. The petitioner was elevated as Deputy Chairman of the Authority in view of the Authority's desire to expand the portfolio of duties assigned to GM Networks and the expertise and competence of the petitioner. Creation of the position of Deputy Chairman was a legitimate exercise of the powers of the Authority. He then read out section 35 of the NADRA Ordinance, which provides that- "35. Registration Officers, officers, employees, etc.--To carry out the purposes of this Ordinance, the Authority may, from time to time, appoint Registration Officers, members of its staff, experts consultants, advisers and other officers and employees on such terms and conditions as it may deem fit." ' He also read out Regulation 4 of the National Database and Registration Authority Employees (Service) Regulations, 2002 which provides that:-- "4. Sanction, creation, re-designation and abolition of posts, etc.--- The authority may sanction, create, re-designate or abolish any post, discipline or cadre within the Authority as it may deem fit. Accordingly, the Authority shall determine the strength of its posts including, without limitation, administrative posts and technical posts and that of a discipline and cadre of the authority." 8. Learned counsel urged that the terms and conditions of service of the petitioner were settled only to determine his emoluments as required by section 33 of the Ordinance, which says that:-- "33. Remuneration.--- The Chairman and members shall be paid. such emoluments as may be determined by the Federal Government and shall not be varied to their disadvantage during their term of office." ' Therefore, the terms and conditions could not go beyond the limited scope of section 33 ibid. Learned counsel for the petitioner went on to argue that there are two issues, i.e,, what was the
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process of appointment and that what were the credentials. The credentials have been explained under section 3(7) of the NADRA Ordinance, which provides that "The Chairman shall be an eminent professional of known integrity and competence with substantial experience in the field of computer science, engineering, statistics, demography, law, business, management, finance, accounting, economics, civil or military administration, or the field of registration". 9. The appointment of the petitioner as Chairman of the Authority was in accordance with the provisions of NADRA Ordinance and the NADRA Ordinance does not lay down any procedural requirement for the appointment of chair. Despite absence of a notified mode of appointment under section proviso to section 3(3) of the NADRA Ordinance the petitioner was appointed after considering all relevant facts, aspects and adopting a reasonable mode which met the requirements of statute. Chairman NADRA had been granted MP1 scale and the terms attached thereto, the petitioner was already getting salary in excess of the MP1 scale in accordance with yearly enhancements added under the Service Regulations, offering him MP1 scale salary would have amounted to reducing the salary that he was receiving as Deputy Chairman. The competent authority only approved emoluments under section 33 of the Ordinance. The termination clause was not only in contravention of section 3 subsections (5) and (12) of the Ordinance and of no legal effect but was also not approved by the competent authority i.e, Prime Minister. Mr. Babar Sattar stressed that NADRA is not an attached department of the Ministry of Interior, rather it is fully independent statutory body, both administratively and financially with no interference from the Federal Government. In the Ordinance itself no powers have been bestowed to the Federal Government. However, the Federal Government can make rules and they can appoint Chairman and members. According to learned counsel the disqualification of the Chairman was provided in subsection (4) of section 3 of the NADRA Ordinance, which says that "No person shall be appointed as the Chairman or a member if he has been declared insolvent, or convicted for an offence involving moral turpitude, or declared to be disqualified from employment in or dismissed form Government Service." 10. Learned counsel for the petitioner laid much emphasis that the petitioner could only be terminated after fulfilling the conditions laid down in section 3(2) of the Ordinance. At this juncture it would be convenient to re-produce the said subsection, which runs as under:--- "(12) The Federal Government may remove the Chairman or any member from office if--- a. upon an inquiry, he is found incapable of performing the functions of his office by reason of mental or physical incapacity, or has been found guilty of misconduct or b.after his appointment he is disqualified from being so appointed as provided in subsection (4):" 11. Learned counsel for the petitioner was of the view that agreement cannot override the law of land or its operation. No one can amend the law or alter the law or change its effects by mutual agreement. In this regard he has placed reliance upon the following, cases:-- (1) Abdul Rashid v. Saleh Muhammad (1980 SCMR 506). (2) Mst. Ghulam Sakina v. Khaliq Bari (1984 CLC 71) (3) United Bank Ltd. Karachi v. Messrs Gravure Packaging (Pvt.) Ltd. (2001 YLR 1549). (4) Abdul Razzak v. Karachi Development Authority (1991 CLC 1551): (5) Muhammad Atif Hanif v. Government of the Punjab (2013 CLC 1612). (6) Sukhdev Singh, Oil and Natural Gas v. Ghagat Ram (AIR 1975 SC 1331). 12. Learned counsel further highlighted that under the Ordinance acting charge for the post of Chairman could not be awarded. He submits that any agreement executed, out of law, is void ab initio having no value in the eye of law. According to learned counsel the petitioner had Master Degree in International Management, Schiller International University, Heidelberg, Germany, 1993, Major in International Business Management, Master Degree in Computer Science, Quaid-e-Azam University, Islamabad, Pakistan, 1991 Major in Systems Analysis and Design and Bachelor Degree in
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Mathematics. In addition to it the petitioner was blessed. with Sitara-e-Imtiaz. The petitioner was appointed was Chairman of NADRA vide Notification dated 17-7-2012 for a period of 3 years in accordance with section 3, Clause 5 of the NADRA Ordinance, 2000 and at the same time his appointment as Deputy Chairman was terminated. He then invited the attention of the court towards summary dated 11-7-2012 flouted for his appointment as Chairman NADRA. Learned counsel read out para. No,2 of the summary, which runs as under:-- "Mr. Muhammad Tariq Malik has been working as Deputy Chairman for the last four years. He is thorough professional, trained as JFK School of Government, Harvard University, Massachusetts and Stanford University California, USA. He is one of the few professionals in Pakistan who are trained in implementing Smart Cards Technology. His personal contribution as Deputy Chairman was internationally acknowledged and he won "ID People Award 2011" by ID Word "EMEA" (Europe, Middle East, Africa) in Abu Dhabi last year. He also won the most prestigious 'ID World Achievement Award 2009' by ID World Congress based in Milan, Italy." 13. It is also contended with full vehemence that Establishment Division raised some objections upon the summary and in this context he referred para. 8, which provides that:-- "Moreover, in terms of policy guidelines for contract appointment in autonomous/semi- autonomous bodies/ Corporations issued by Establishment Division vide O.M. No,6/2/2000-R-3, dated 6-5-2000, the post should be advertised and selection made through a regularly constituted selection Committee/Board (Annex-II). However, Serial No,133 of Esta Code contains guidelines for appointment on contract basis which inter alia provide that the condition of open advertisement may be relaxed with prior approval of the Prime Minister, in case of intake of qualified persons from the market/private sector in exceptional situations where it is not practicable to observe the said condition (Annex-III). However, the instant case has not been processed as prescribed procedure." 14. That after due approval from the Prime Minister of Pakistan the petitioner was appointed as Chairman NADRA. As per letter dated 27-7-2012, the terms and conditions of service were to be settled separately, which had been recommended by NADRA Board in its meeting held on 25th July, 2012 to provide protection to the pay of officer that he was already drawing as Deputy Chairman, NADRA. Learned counsel for the petitioner contended that in the terms and conditions, the condition of termination of contract i.e, on one month's notice on either side or payment of one month's pay in lieu thereof was added. 15. Learned counsel for the petitioner then referred office memorandum dated 24-8-2012, issued by Finance Division, Regulations Wing, which inter alia says that "Finance Division proposes that the Chairman may be granted emoluments of MP-1. Since he had been drawing special pay, ad hoc reliefs and other perks, it would be difficult to vary that to his disadvantage. Establishment Division may consider those provided these were granted with the approval of the Prime Minister. It is pointed out that ultimately the terms and conditions were approved by the Prime Minister vide letter dated 21-9-2012". Learned counsel for the petitioner referred the case of "Khawaja Muhammad Asif v. Federation of Pakistan" (2013 SCMR 1205), as in the said esteemed judgment, the Hon'ble Supreme Court of Pakistan has prescribed the procedure for scrutinizing and removing heads of statutory bodies in case of wrongful appointments. To shore up his view, he has read out para No,26 of the judgment, which provides that:--- "Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by any comprising two other competent and independent members having impeccable integrity may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure
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appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controller corporations, autonomous and semi-autonomous bodies, etc. The Commission should to mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions:-- (i) Regulate public appointments processes within his remit; (ii) Implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections; (iii) Chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary; (iv) Appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate; (v) Report publicly on a public/statutory body's compliance with the Code of Practice, including examples of poor and good performance, and best practice; (vi) Investigate complaints about unfair appointment process; (vii.) Monitor compliance with the Code of Practice; (viii) Ensure regular audit of appointments processes within his remit." (ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous years. The annual report for the previous calendar year should be laid before the Parliament by 31st March; (x) Take any other measures deemed necessary for ensuring tliat processes for public sector appointments that fall in his remit are conducted honestly, justly fairly and in accordance with law, and that corrupt practices are fully guarded against." 16. Learned counsel for the petitioner explains that in compliance with the said judgment the Establishment Division vide Notification dated 22-7-2013 constituted a Commission to be known as the Federal Commission for Selection of Heads of Public Sector Organizations (FCI-IPSO) empowering the Commission inter alia to investigate complaints about unfair appointment process, therefore, the government instead of terminating the petitioner should have filed complaint before the Commission. In terminating the employment of the petitioner respondent No,1 has usurped the jurisdiction .vested exclusively in the Selection Commission constituted under the directions of the august Supreme Court of Pakistan. 17. It 4s further stressed that now the Hon'ble superior courts of the country have declared that a termination simpliciter clause within the contract of a public official is illegal and ultra vires of the Constitution. Even if the initial appointment is irregular, show-cause process to reach such determination is mandatory. In support of his contentions, he has placed reliance on the following dictums:-- (1) Agha Salim Khurshid v. Federation of Pakistan (1998 PLC (C.S.) 1345). (2) Muhammad Aslam v. Vice Chairman (2010 PLC (C.S.) 266). (3) Habib Bank Limited v. Ghulam Mustafa Khairati (2008 SCMR 1516). (4) Faisal Sultan v. E.D.O. (201.1 PLC (C.S.) 419). (5) Muhammad Ashraf Tiwana v Pakistan (2013 SCMR 1159). 18. From the case of Muhammad Ashraf Tiwana op-cite, the learned counsel for the petitioner has read out para No,56 of the judgment, which says that:-- "To sum up the discussion in this part, when we read the Act in the light of principles elaborated repeatedly in our precedents, it becomes clear that the SECP cannot simply be terminating the services of its employees at its whims and pleasure, without having recourse to valid reasons. It can only terminate an employment when it has reasons to do so which are fair and just and
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advance the purposes of the Act. Both law and public policy require this. This is why in our short order, we declared clause 3(1) of Chapter 11 of the SECP Service Rules (HR Handbook), which allows for termination simpliciter (without cause) of employees of SECP, as ultra vires the Constitution and inter alia, the Act. We had also directed that the above clause be replaced appropriately by provisions ensuring due process and adherence, inter alia to Articles 9, 10A, 14, 18 and 25 of the Constitution and which are consistent with the provisions of the Act ensuring independent and objective decision making without fear or favour, as required of an independent regulator." 19. As regards dual nationality of the petitioner, learned counsel vigorously asserted that in this regard petition was filed before the Hon'ble Supreme Court of Pakistan, in which Ministry of Interior submitted report and consequently the petition was filed. In the reply submitted by the Ministry of Interior, it was incorporated as under:-- "Mr. Muhammad Tariq Malik has been working in areas of strategic project management of Technology, IT Government, systems, analysis, design, software development and business process re-engineering for over 19 years in Pakistan and abroad. With direct relevance of these fields with NADRA's functioning and profile as one of the largest information and communication technology organizations in the country operating doing project both nationally and internationally, NADRA stands to benefit, and has in fact tremendously benefited, from Mr. Muhammad Tariq Malik's knowledge and experience in the aforesaid fields." ' According to learned counsel this was the official position of the government regarding the petitioner which cannot be changed in any way. 20.…
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