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Petitioner: MUNIR AHMAD VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Shahid Karim Title: MUNIR AHMAD vs FEDERATION OF PAKISTAN and others Case No.: W.P. No,38449 of 2015 Date of Judgment:2017-12-18 Reported As: 2018 CLC 530, 2018 [M] C.L.R. 192, 2018 PLC (C.S.) 746 Result: Petition allowed
JUDGMENT
JUDGMENT SHAHID KARIM, J.--- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks a declaration that the notification ("the impugned notification") dated 11.11.2015 issued by the Establishment Division, Government of Pakistan be declared as without lawful authority and of no legal effect. By the impugned notification the respondent No,4 was appointed as Chairman of the Pakistan Electronic Media Regulatory Authority (PEMRA) in terms of section 7(1) of the PEMRA (Amendment) Act, 2007. The impugned notification is reproduced as under:--- "With the approval of the Competent Authority, Mr. Absar Alam, is appointed as Chairman, Pakistan Electronic. Media Regulatory Authority (PEMRA) under Ministry of Information, Broadcasting and National Heritage, in terms of Section 7(1) of PEMRA (Amendment) Act, 2007, with immediate effect and until further orders. 2. The terms and conditions of his appointment shall be settled separately, in terms of section 9 of PEMRA (Amendment) Act, 2007." 2. At a later stage on April 8, 2016, the remuneration and terms and conditions of appointment of Absar Alam as Chairman PEMRA were notified. According to this document issued by the Ministry of Information, Broadcasting and National Heritage, the competent authority had approved a remuneration of Rs,15,00,000/- (net of taxes) for Absar Alam as the Chairman PEMRA and his period of contract was for four years tenure in terms of section 7 of PEMRA (Amendment) Act, 2007. 3. The process commenced with an advertisement published in the newspapers of 23.7.2014. The salient features of the said advertisement with regard to eligibility and selection procedure were to the effect that:- "Eligibility
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a. The Prospective candidates should have the following qualification and experience b. An eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law in accordance with section 6(2) of the PEMRA Ordinance, -2002 as amended by the PEMRA Amendment Act, -2007. c. MA/MSc/MBA/LLB/LLM from HEC recognized university in Pakistan OR abroad at least in 2nd Division. Degree shall be verified from HEC. d. Age between 50 to less than 65 years. e. Written evidence of 15 years experience in organization of governance, management, administration, financial management, media management and marketing. f. Government Servant meeting the eligibility criteria may also apply. "Selection procedure: The selected of candidate will be made as per procedure and guidelines contained in relevant order/ judgments of the superior judiciary." 4. However, the appointments were not made in pursuance of the advertisement referred to above and a fresh advertisement was publicized through various national dailies on 24.8.2015. The intention, according to the reply filed by the respondent No,2, was to ensure sufficient publicity in order to meet and adhere to the requirements of section 6(2) of the PEMRA Ordinance, 2002, so that the widest possible pool of qualified potential candidates could be attracted and were available with the Federal Government in order to make a choice based on best practices and in compliance of the requirements given in subsection (2) of section 6 with regard to the need for the Chairman of the authority to be an eminent professional of known integrity having substantial experience in media, business management, finance, economics or law. Vide notification dated 31.08.2015 the Prime Minister approved the composition of the Selection Board for appointment of Chairman PEMRA comprising of the following:- A. Minister for IBNH (Chairman) B. Secretary, IBNH (Member) C. Secretary Establishment Division (Member) D. Director General IP IBNH (Secretary). 5. The advertisement attracted as many as fifty two applications from prospective candidates interested in the position so advertised. Thirteen candidates were found ineligible on account of the bar of age as contained in the proviso to section 7(1) of the Ordinance, 2002. Thirty nine candidates were found eligible and short listed for interview. It is the case of the respondent No,2 as well as the respondent No,4 that the entire exercise of short listing for interviews and the ensuing interview process was underlined by values of objectivity, transparency and due application of mind. Twenty one candidates were interviewed on 29.9.2015 and the remaining eighteen candidates went through the interview process on 30.09.2015. A questionnaire comprising of thirty questions was drawn up by the Selection Board which were the questions to be put to each candidate during the interviews. The questionnaire so formulated had a direct nexus with the provisions of the Ordinance, 2002 and constituted an objective benchmark for determining the eligibility and suitability of each candidate for the high post for which they were being interviewed. In paragraph 28 of the reply the respondent No,2 states that:-- "It is further submitted that the purpose of the said questions was to eliminate the element of subjectivity and structure the discretion of the Federal Government vide an inclusive process. It is averred that the manner in which the questions were formulated was designed for the purpose of inquiry and/ or due diligence into the self-generated applications of the said candidates, in order, to ascertain their veracity etc. In such manner, the said Selection Board, in its discretion was able to gauge the ability, integrity, experience, expertise and eminence of the said potential applicants/ candidates."
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6. It is the case of the respondents that the Federal Government in its discretion chose a person from amongst the potential applicants best suited for the post of Chairman PEMRA. A summary was moved to the competent authority in terms of Civil Establishment Code-2007 (Volume-1, Chapter-2, Serial No,140, Para 6; page 215) by which it was requested to notify the appointment of Absar Alam Haider as the Chairman PEMRA for a four-year tenure. 7. The terms in the earlier advertisement have been reproduced above which were varied in the subsequent advertisement through which the appointment of the respondent No,4 was made and which formed the entire basis for the said appointment. The terms with regard to eligibility and qualification as well as selection procedure in order to contrast them with the earlier conditions on these aspects are being reproduced for reference:- "Eligibility and Qualification: a. An eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law in accordance with Section 6(2) of the PEMRA Amendment Act, 2007. b. Graduation in (media sciences, business, management, finance, economics, law) from HEC recognized Pakistani/Foreign University. Foreign degrees shall be got verified from HEC before employment offer. c. Age between 50 to 61 years as on the date of press advertisement in terms of Cabinet Division's Instructions No, 6/12/2007/RA-1 dated 9th October, 2007-which have notified maximum age of 65 years OR expiry of the tenure (whichever is earlier) for holding the post of Chairman / Chief Executive of Regulatory Authorities. d. Written evidence of 20 years experience in disciplines identified (a-above). e. Government Servants meeting the eligibility criteria may also apply provided they submit an undertaking along with their, application to resign from their existing employment in case of selection. Selection Procedure: The selection of candidate will be made in line with the prescribed procedures laid down by the Government of Pakistan in Civil Establishment Code-2007(Vol-1 : Chapter -2 : SI. No,140-141 : pages ---213 -217 which focuses the procedures for appointments in Autonomous Bodies under the Federal Government." 8. It will be seen upon a comparison of the two advertisements that the eligibility in the previous advertisement with regard to the academic qualifications were MA/ M.Sc./ MBA/ LLB/ LLM from HEC recognized university in Pakistan or abroad which degrees were to be verified through HEC. As against that in the subsequent advertisement the academic qualification was scaled down to Graduation in (Media Sciences, Business, Management, Finance, Economics, Law) from HEC recognized Pakistani/ Foreign University. The first attack of the petitioner relates to the considerable lowering of the bar in the academic qualification and according to the learned counsel for the petitioner this was done to benefit the respondent No,4 and was tailored for the purpose of enabling the respondent No,4 to apply for the said position. 9. Also the selection procedure given in the earlier advertisement was to be based on the orders/ judgments of the superior judiciary whereas in the subsequent advertisement the selection procedure was to be made in line with the procedure laid down by the Government, of Pakistan in Civil Establishment Code, 2007, which relates to the procedure for appointments in autonomous bodies under the Federal Government. Once again, the selection procedure omitted to make a mention of the dicta of the superior courts with regard to such appointments and which brought a sea-change in the entire appointment process of posts in autonomous bodies tasked with specialized functions of regulating and to superintend various disciplines and fields of activity. The importance of this change will be brought forth in the proceeding paragraphs with special
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reference to the judgments of the Supreme Court of Pakistan in which foundational guidelines were settled for such appointments to be made, by the Federal Government. The Relevant Law: 10.PEMRA Ordinance, 2002 regulates the electronic media in Pakistan and the purpose of the law as delineated in its preamble is to provide for the development of electronic media in order to improve the standards of information, education and entertainment; enlarge choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology etc. and to facilitate the devolution of responsibility and power to the grass- roots by improving the access of the people to mass media at the local and community level. We are not concerned with the generality of the various provisions which comprise the Ordinance, 2002. However, the relevant provision with regard to the appointment of the Chairman PEMRA is encapsulated in section 6, which is as follows:--- 6. Members of Authority.- (1) The Authority shall consist of a Chairman and twelve members to be appointed by the President of Pakistan. (2)The Chairman of the Authority shall be an eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law. (3)Out of twelve members one shall be appointed by the Federal Government on full time basis and five shall be eminent citizens chosen to ensure representation of all provinces with expertise in one or more of the following fields: media, law, human rights, and social service. Of the five members from the general public, two members shall be women. (4)Secretary, Ministry of Information and Broadcasting, Secretary, Interior Division, Chairman, Pakistan Telecommunication Authority and Chairman, Central Board of Revenue shall be the ex officio members. (4A) The remaining two members shall be appointed by the Federal Government on need basis on the recommendation of the Chairman. (5)The members shall receive such fee and expenses for each meeting as may be prescribed. (6)A member, other than an ex officio member, shall be deemed to have vacated his office if he absents himself for three consecutive meetings of the Authority without the leave of the Authority." 11. Section 7 relates to the tenure of members and provides that the Chairman and members, unless earlier removed for misconduct or physical mental incapacity shall hold office for a period of four years and they shall retire on attaining the age of sixty-five years. Section 9 deals with remuneration of the Chairman and members and provides that:- "9. Remuneration, of Chairman and members.- (1) The Chairman and members shall be paid such emoluments as the President of Pakistan may determine and shall not be varied to their disadvantage during their term of office." 12.Therefore section 6, reproduced above, gives an inkling regarding the appointment process and to say the least does not prescribe any elaborate procedure for the purpose and grants discretion in the hands of the President of Pakistan to appoint the Chairman and twelve members of the authority. Subsection (2) provides that Chairman of the Authority shall be an eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law. Therefore, the power vesting in the Federal Government. is wide-ranging and polycentric and its precise contours have not been spelt out which would guide the Federal Government to appoint the Chairman. The broad sinews of the power given in subsection (2) are merely that the Chairman shall be an eminent professional of known integrity and competence. However, as will be brought forth in the proceeding paragraphs, the Supreme Court of Pakistan in a number of cases forming a high water-mark of judicial control has had the occasion to deal with such appointments and has laid down rigorous criteria for compliance by
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the Federal Government in appointments to be made to autonomous bodies and other regulatory bodies of the Federal Government so as to structure the discretion and to provide for the periphery of the power to be exercised in such matters. 13.In its power of judicial review of administrative actions and in particular appointments of administrative posts and public sector organizations, the rule which underpins such a review is whether the appointment process conforms with the rules governing such appointments. In the reply filed by the respondent No,2, Ministry of Information, Broadcasting and National Heritage, an impression was sought to be conveyed that the Ministry of IBNH 'delineated a stringent process ensuring obedience to the legislative command given in the Pakistan Electronic Media Regulatory Authority Ordinance of 2002, the relevant principles/dictates settled by the Supreme Court of Pakistan and, therefore, the requirements of law were met in appointing Absar Alam Haider, the incumbent Chairman, as perhaps the first person in the history of PEMRA, to be appointed through an open and credible selection process that was adopted after sufficient publicity and followed with rigor, objectivity, transparency and due diligence in compliance with the relevant, applicable and settled laws". The reply further goes on to refer to a history of the appointment of Chairmen of PEMRA over the years and also refer to the orders passed by the Supreme Court of Pakistan in C.P No,104/2012 and in particular the order dated 17.9.2012. It goes on to refer to other orders passed in C.P No,105/2012 which, it seems, related to the appointment of Chairman of PEMRA as also to the question whether Acting Chairman of PEMRA could be appointed or not. On 24.06.2015 in C.P No,105/2012 the following order was passed:--- "2. The issue, which is now outstanding, is the composition of PEMRA, as an independent Regulatory Authority for the Electronic Media in Pakistan. On the last date of hearing, we had passed an order, which specified inter alia that "PEMRA shall be constituted as a neutral and independent regulator in accordance with the provisions of section (6(2) and (3) of the PEMRA Act". We had also noted that the process of appointing the Chairman and Members of PEMRA should be transparent and should be in line with the procedures and eligibility criteria mutatis mutandis, which generally had been set out for Regulatory Bodies in the cases titled as Muhammad Yasin v. OGRA (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Federation (2013 SCMR 1159). 3..... It was expressed as our hope and expectation that the Executive, as the appointing authority, and PBA shall be able to come up with a common panel of acceptable names so that PEMRA remains properly constituted. Regrettably, this has not happened, as yet. 4.... the broadcasters have in mind some names, who fulfill the qualifications given in section 6 of the PEMRA Act, which inter alia requires the Chairman to be an eminent professional and members to be eminent citizens. At today 's hearing, it seems that it may not be a difficult exercise to come up with the people of such eminence and credibility, as can lend moral authority to PEMRA in addition to the legal authority vested in the said regulator. 5. The two sides have agreed to proceed in good faith and make efforts to come up with names of eminent professionals/citizens to occupy the position of Chairman and Members of PEMRA. Let them do the needful..." 14. The outstanding features of the order, reproduced above, is the recognition of PEMRA as an independent regulatory authority for the electronic media in Pakistan by the Supreme Court of Pakistan as also that PEMRA shall be constituted as a neutral and independent regulator in accordance with the provisions of section 6(2) and (3) of the Ordinance, 2002. It was also noted that the appointment of Chairman of PEMRA should be through a transparent process and in line with the procedures and eligibility criteria set out for regulatory bodies in cases titled Yasin v. OGRA (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Federation (2013 SCMR 1139). It may be pertinent to mention here that the petition in which the orders were being passed by the Supreme Court of Pakistan was brought, inter alia, by Absar Alam, the respondent No,4 and the current
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Chairman PEMRA. Finally on 19.8.2015, the following order was passed:--- 1. Pursuant to that order Mr. Rashid Ahmed who claims to be the Chairman PEMRA has appeared. Likewise, Mr. Kamal ud Din Tipu is also present who claims to be holding the post of Acting Chairman PEMRA. 2. After hearing Mr. Rashid Ahmed and after having gone through the various documents on record, it is apparent that the matter as to appointment of Mr. Rashid Ahmed as Chairman PEMRA is sub judice before Islamabad High Court in ICA No,267 of 2015. Without embarking upon examination of the merits of the said ICA, we direct as under:-- (a)That ICA No,267/2015 may be decided at an early date because the position of Chairman PEMRA is vacant since 13th August, 2015. A copy of this order shall be sent to the Registrar of the Islamabad High Court to be placed before Hon'ble the Chief Justice for appropriate orders. (b)Until the said ICA is decided, the government may proceed with a rigorous and transparent process for filling the position of Chairman PEMRA in line with the principles of law laid down in the cases titled Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Pakistan (2013 SCM R 1159) (c)The process of appointing the Chairman PEMRA shall be completed within 30 days positively. 4. Since at present there is no Chairman PEMRA and we have already held that there is no provision in the PEMRA Ordinance which permits an Acting Chairman, the agreed code of conduct which has been referred to above shall be deemed to be the code of conduct to be implemented forthwith till the same is duly notified by the duly constituted PEMRA in terms of Section 6 of the PEMRA Ordinance." 15. The appointment process was triggered by the order of the Supreme Court of Pakistan, reproduced above, and culminated in the said appointment of respondent No,4 who was appointed on 11.11.2015 in terms of section 7(1) of the PEMRA (Amendment) Act, 2007. The respondent No,4 took charge as Chairman on 01.12.2015. It would bear repetition that the selection process which has been brought forth in the reply of respondent No,2 narrates the events in seriatim by which the selection process was completed. It makes a reference to the advertisement dated 23.8.2015 which appeared in various newspapers and by which it was announced that the vacancy of the position of the Chairman PEMRA was sought to be filled. In pursuance of the advertisement, the Ministry of IBNH received applications from 52 candidates of which 13 were found ineligible and 39 candidates were found eligible and short-listed for interview. The Selection Board constituted for the purpose (which will be adverted to at a later stage) interviewed 21 candidates on 29.9.2015 and the remaining 18 candidates were interviewed on 30.09.2015. The Selection Board formulated 30 questions which were put to each candidate during the process of interviews. According to the reply, the questions formulated had a direct nexus with the purpose to be achieved in terms of the mandate of the Ordinance, 2002 and "it is further submitted that the purpose of the said questions was to eliminate the element of subjectivity and structure the discretion of the Federal Government vide exclusive process. This was the manner in which the questions were formulated and were designed for the purposes of inquiry and/ or due diligence into the self-generated applications of the said candidate, in order to ascertain their veracity etc. In such manner the said Selection Board in its discretion was able to gauge the ability, integrity, experience, expertise and eminence of the said potential applicants/ candidates. Further, the reply goes on to mention that the Federal Government in exercise of executive discretion chose a person from amongst potential applicants/ candidates one most suited to the post of Chairman PEMRA". Importantly, the respondent No,2 concedes that "Regulation is the most important function to be discharged by the PEMRA and autonomy has been ensured through enforcement of the legal checks upon appointments to important position therein, at the behest of the Executive/Federal Government." 16. The reply referred to above mentions the entire process which was employed for the selection of
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respondent No,4 as Chairman PEMRA. The process, it can be seen, was set in motion with the constitution of a Selection Board which interviewed the candidates and for which a set of 30 questions was formulated and which was put to each candidate according to the reply. In the estimation of the Selection Board, 3 candidates were found to be more eligible than the rest of the candidates interviewed and their names were forwarded to the Prime Minister for one of them to be appointed as Chairman PEMRA. The Prime Minister made a choice in favour of the respondent No,4 who was consequently appointed. The other two candidates who were recommended by the Selection Board were Dr. Muhammad Ali Sheikh, Vice Chancellor Sindh Madrassa ul Islam and Kamal ud Din Tipu, Acting Chairman PEMRA. It will have to be borne in mind at all times that the appointment process under challenge had its provenance in a case reported as Hamid Mir v. Federation of Pakistan (PLD 2013 SC 244) (in which the respondent No,4, too was a petitioner) and which case was prompted by a desire to establish elevated and lofty vision regarding the appointment standards for Chairman, PEMRA. 17. As a prefatory, a reference to the first advertisement dated 23.7.2014 may be made which will set the tone for the discussion that follows. By that advertisement applications were invited for four year tenure appointment of Chairman PEMRA by the Press Information Department, Ministry of Information, Broadcasting and National Heritage. The position was placed in MP-1 Grade. The eligibility criteria as brought forth above had nexus with section 6(2) of the PEMRA Ordinance, 2002. However, the qualification of the prospective candidates was mentioned as Masters from HEC recognized university in Pakistan or abroad. Another significant eligibility criteria was the requirement of the prospective candidates to provide written evidence of 15 years experience in organization of governance, management, administration, financial management, media management and marketing. This had a direct nexus with the post of Chairman PEMRA which was primarily concerned with the administration and management affairs and it is in this context that the appointment of the respondent No,4 will have to be seen. The selection procedure was to comport to the procedure and guidelines contained in the judgments of the superior judiciary. Once again, this was a crucial aspect since the Supreme Court of…
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