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Official Citation: 2025 IHC 239515
Court / Jurisdiction: Islamabad High Court
Parties: Muhammad Sajjad Hussain vs FOP etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 239515. In this matter between Muhammad Sajjad Hussain and FOP etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 27-OCT-2025 CASE NO: Writ Petition-3317-2024 CITATION: 2025 IHC 239515 PARTIES: Muhammad Sajjad Hussain VS FOP etc. LAW / SECTION: - SUBJECT: Service, Qua Warranto REMARKS: Quo warranto against post creation and appointment of Director Strategic Managment Office of National Energy Efficiency Conservative board. ============================================================ JUDGEMENT SHEET
IN THE ISLAMABADHIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
Writ Petition No. 3317/2024
Muhammad Sajjad Hussain Vs. Federation of Pakistan through Secretary Establishment Division & others
Petitioner by: Raja Adnan Aslam, Advocate. Respondents by: Mr. Fahad Khan Tareen, Assistant Attorney General. Mr. Jameel Hussain Qureshi, Advocate, along with Mr. Ali Ata Hashmi, Assistant Director, National Energy Efficiency & Conservation Authority. Mr. Qamar ul Haq Khan Niazi, Advocate for respondent No.4. Mr. Zafar Ullah Khan, Law Officer, Power Division.
Date of Hearing: 07.05.2025. ======================================= BABAR SATTAR, J. - The petitioner has impugned the actions of the National Energy Efficiency and Conservation Authority (“NEECA”): (i) the creation of the post of Director , Strategy Management Office (“Director SMO”), (ii) the appointment of respondent No.4 to the position of Director Strategy Management Office and (iii) Gazette notification dated 05.03.2024, in the form of SRO 346(I)/2024 dated 25.01.2024, through which amendments were introduced to the National Energy Efficiency and Conservation Authority (Service) Regulations, 2021 (“NEECA Service Regulations”). 2. The petitioner contended that the entire process of creation of the post of Director SMO, the prescription of criteria for appointment to such post and the manner in which such process was conducted, to appoint respondent No.4 , was in breach of law and provisions of the National Energy Efficiency and Conservation Act , 2016 (“NEECA Act”) , read with the NEECA Service Regulations. W.P No. 3317/2024 P a g e | 2
3. The learned counsel for the petitioner submitted that the power to appoint staff was vested in NEECA pursuant to Section 7(w) of the NEECA Act. He submitted that Section 21 of the NEECA Act vested authority in the B oard to frame regula tions in consultation with the NEECA. Section 21( 2) of the NEECA Act provided for regulations to determine the manner in which modes of appointment and determination of terms and conditions of employees were to be exercised. He submitted that pursuant to such provision, NEECA Service Regulations have been framed. But the post of Director SMO has not been prescribed through NEECA Service Regulations. He further submitted that the said office did not form a part of the organogram of NEECA. Further, the scheme of appointments reflected that the maximum age limit for the post of Director SMO has been fixed for all other such posts as forty- five (45) years. In the in stant case, the advertisement inviting applications for the post of Director SMO fixed the maximum age at forty (40) years to tailor the process to benefit respondent No.4 and exclude competition from other qualified persons. He submitted that respondent No.4 had previously applied for the job of Senior Assistant Director in the year 2021 , where, after competitive process, he was not offered the job, but the petitioner was offered the said job. However, subsequently a special post of Director SMO, was carved out to accommodate respondent No. 4 through a tailored process, which was not supported by the NEECA Service Regulations. 4. The learned counsel for respondents No.3 and 4 raised a preliminary objection about the maintainability of the petition. It was submitted that the post of Director SMO, held by respondent No.4, was not a statutory position and did not qualify as a public W.P No. 3317/2024 P a g e | 3
office in terms of the law laid down in Ghulam Murtaza v. Federation of Pakistan (2023 PLC(C.S) 1188) and Shahid Mehmood v. BISP (2024 PLC (C.S) 1103). It was further submitted that in the event that the petition was not to be treated as seeking the issuance of a writ of quo -warranto, but instead a writ of mandamus, the petitioner must be an aggrieved person, as required by Article 199 of the Constitution. It was submitted that the petitioner never applied for the position of Director SMO and could not be tr eated as an aggrieved person in relation to respondent No.4 being hired for such position. 5. The learned counsel for the petitioner, on the question of maintainability, submitted that the petition was not merely seeking the issuance of a writ of quo -warranto declaring that respondent No.4 was serving on a public post , where he should not be serving. The challenge brought forth in the instant petition related to the manner of recruitment undertaken by a statutory authority. He submitted that the Board of NEECA was vested with powers under Section 21 of the NEECA Act to frame regulations for purposes of the NEECA Act. In the NEECA Service Regulations, approved by the Board of NEECA, the maximum age for the appointment of a Director SMO, Strategy Management Office, was 45 years. He submitted that recruitment was undertaken for purposes of appointment of Senior Assistant Directors, in which respondent No.4 also competed , but could not qualify. Subsequently, a special position was carved out and the recruitment criteria were also tailored to provide for his appointment in breach of the criteria approved by the Board of NEECA in terms of the NEECA Service Regulations. The amended Service Regulations also provided a maximum age of forty-five W.P No. 3317/2024 P a g e | 4
(45) years for the appointment of a position of Director. However, the said amended Service Regulations had also not been approved by the Board of NEECA, but had nonetheless been still gazette, notwithstanding the fact that the minutes of the 9th Board meeting dated 13.01.2023, as appended with the petition , issued certain directions to amend the o rganogram of NEECA and place that before the Board. Consequently, there ought to have been an independent Board meeting, in which the organogram and/or any amendments to the NEECA Service Regulations were considered and approved with a direction that the amended NEECA Service Regulations, as approved, be gazetted. But no such minutes have been placed on record to establish that the NEECA Service Regulations, as amended, had been duly ap proved by the Board and were backed by the authority of law. 6. The learned counsel for r espondents No.2 and 3, on merits of the petition , submitted that in the 5th meeting of the Board of NEECA, it was decided that a position be created to provide support to the Board, keeping in view the HR model being used by the Benazir Income Support Program me (BISP) for purposes of appointment to the position of Director. The Managing Director (MD), NEECA, was the competent authority in terms of regulation 13(2) of the NEECA Service Regulations . The MD, NEECA, had constituted a committee, which then finalized the Terms of Reference (TOR) for the said position and determined that the position would be that of Director. It was submitted that there was no legal infirmity with fixing a maximum age of forty (40) years as a criterion for appointment to such position. It was in view of the directions issued by the NEECA Board in the 13th meeting dated 16.08.2024, the NEECA Service Regulations were W.P No. 3317/2024 P a g e | 5
amended and gazetted on 05.03.2024 (SRO 346(I)/2024 , dated 25.01.2024). He submitted that there was no infirmity in the manner in which the position of Director SMO was created or the manner in which respondent No.4 was hired for the said position. 7. The learned counsel for respondent No.4 submitted that respondent No.4 was at the receiving end of the decisions rendered by NEECA. To the extent that there was any irregularity, he could not be held liable for the same. He had applied in accordance with an advertisement issued by NEECA and had been appointed in accordance with law. He relied on the doctrine of locus poenitentiae to argue that his appointment could not be declared illegal. 8. In rebuttal, the learned counsel for the petitioner submitted that the NEECA Board had issued directions to abolish two posts. The Board however never issued a direction to re -do the organogram of NEECA and publish it without the Board's approval. The minutes of the 13th Board meeting of NEECA explicitly required the management to produce the proposed organogram before the Board, which direction was never complied with. The decision to create a position to prov ide secretarial support to the B oard by crea ting post of Director SMO was also not backed by the authority of the Board or the NEECA Service Regulations. He submitted that respondent No.4 had previously applied for a position of Assistant Director, for which the recruitment process was carried out by Institute of Business Administration (“IBA”). The petitioner and respondent No.4 both competed in the process and the petitioner was appointed to the position of Senior Assistant Director Strategy, Policy and Regulations by appointment letter dated 18.03.2022. Respondent W.P No. 3317/2024 P a g e | 6
No.4, however, was not selected or appointed to any position in NEECA. Having failed such recruitment process, the position of Director SMO was then tailored in order to select respondent No.4 for such position, which was done through a process that was neither competitive nor transparent. The petitioner was an aggrieved person as he had been hired through a transparent competitive process in accordance with law to the po st of Senior Assistant Director. W hile respondent No.4 had been appointed through a tai lor-made process designed for him and had been appointed to a position higher than the petitioner's position. It was thus th at the p etitioner was seeking the issuance of a writ of mandamus challenging the entire process through which the position of Director SMO was created and respondent No.4 was appointed to it. 9. The basic challenge brought by the petitioner is against a series of actions of Respondent No.3 that have led to the creation of the post of Director, Strategy Management Office and the recruitment of Respondent No.4 against such post. The first prayer of the petitioner is seeking a declaration that , “all acts of respondents, including the creation of post of Director Strategy Management Office along with appointment of respondent No.4 as illegal, unconstitutional, without lawful authority… “. It has further been prayed that, “a Gazette notification issued dated 05.03.2024 should be set aside being void ab initio without lawful authority.” 10. One of the objections to the maintainability of the petition raised by the counsel of respondents was that the office held by respondent No.4 was not of a statutory nature and did not qualify as a public office. The office held by respondent No.4 may not be a public office but that is beside the point for purposes of W.P No. 3317/2024 P a g e | 7
the instant petition. The petition is not in the nature of seeking the issuance of a writ of quo warranto against respondent No.4. The petitioner has challenged the process adopted by respondents No.2 and 3 for purposes of the purported creation of the office of Director Strategy Management. It has been argued that the notification issued for purposes of recruitment of the position of Director SMO was in breach of the NEECA Act and NEECA Service Regulations. It has further been asserted that N EECA Service Regulations, as amended through SRO 346(I)/2024 dated 25.01.2024, published in the official gazette on 05.03.2024 , are illegal as such amendments were never approved in accordance with provisions of the N EECA Act. The petitioner is therefore seeking the issuance of a declaration by this Court holding that the actions of respondent No.3, which is a statutory authority, in creating the post of Director Strategy Management Office , undertaking the recruitment process tailored to hire respondent No.4 to such post in breach of requirements of the N EECA Regulations, and notification of amendment to NEECA Regulations without due authorization to be declared illegal. This Court has the jurisdiction to issue such decla ration in exercise of its judicial review powers , if it finds merit in the assertions made by the petitioner. It has already been clarified by this Court in Usama Khilji v. Federation of Pakistan and others (W.P. No.1561 of 2023) that the maintainability of a petition cannot be challenged merely on the basis of a relief claimed by the petitioner when in view of the facts and circumstances of the case the relief to be granted falls within the power and jurisdiction of the Court . In the instant matter, the relief being claimed is a declaration that the actions of respondents No.2 and 3 leading to the creation of W.P No. 3317/2024 P a g e | 8
the post of the Director SMO and hiring of respondent No.4 to such office were illegal and ultra vires the provisions of NEECA Act and NEECA Service Regulations. The objection that the office in question is not a public office is therefore irrelevant. 11. The second objection to the maintainability of the petition raised is with regard to whether the petitioner is an aggrieved person. This objection is also without merit. It is the actions of respondent No.3 as a statutory authority that are in question before this Court in relation to which exercise of judicial review powers have been sought. The petitioner is seeking judicial review of the actions of his employer , which is a statutory authority on the basis that such actions are not in accordance with provisions of the N EECA Act and the N EECA Service Regulations. To the extent that the actions of respondent No.3 are not in accordance with the law, this in itself qualifies the petitioner in his capacity as an employee of the said statutory authority as an aggrieved person. But this is not all. The petitioner participated in a recruitment process undertaken by r espondent No.3 through advertisement of certain positions on 28 .11.2021. T he recruitment process was administered by IBA. After a written test and an interview, the petitioner was selected for the position of Senior Assistant Director. Respondent No.4 also participated in the recruitment process and was not selected. Subsequently, the position of Direc tor Strategy Management Office was created, which according to the peti tioner was done to accommodate respondent No.4, and the recruitment process was tailo red for such purpose. Finally, respondent No.4 was appointed as Director SMO without a written test and a transparent recruitment process such as the one that the petitioner participated in, and respondent W.P No. 3317/2024 P a g e | 9
No.4 was appointed to a post higher than that held by the petitioner. It is in view of these facts that this Court is satisfied that the petitioner qualifies the test of being an aggrieved person for purposes of Article 199 of the Constitution. 12. NEECA has been created pursuant to s ection 6 of the NEECA Act. The supervision, management and policy direction of NEECA is vested in a Board, the powers and functions of which are detailed in section 4 of the NEECA Act. Section 4(4) of the NEECA Act provides that, “the Board may approve appropriate strengthening, restructuring, capacity building, terms and conditions of employees and compensation or protection of service benefits for NEECA and its employees, who effectively carry out the functions under the provisio ns of this Act.” Section 6 that declares NEECA to be a body corporate provides that its general direction and administration shall vest in a Managing Director, who in terms of Section 6(3) also serves as the Secretary of the Board and reports to the Board for approval in relation to all matters including NEECA's budget, plans and projects. Section 7 of the NEECA Act lists the powers and functions of N EECA as an Authority. Section 7 (w) includes amongst its powers and functions, the power to “appoint such technical and legal experts and administrative staff as it considers necessary for the efficient performance of its functions on such terms and conditions as may be prescribed.” As is customary, the term “prescribed” is defined in Section 2(xxvi) to mean “prescribed by rules or as the case may be, regulations made under this Act”. Section 20 vests the Federal Government with the power to make rules as approved by the Board. And section 21 vests the Board with the power to make regulations in consultation with the Authority in order to achieve W.P No. 3317/2024 P a g e | 10
the purposes of this Act “by notification in the official Gazette”. In exercise of the authority vested by Section 21 of the N EECA Act, the NEECA Service Regulations were promulgated and notified in the Gazette on 11 .12.2021. Regulation 7 of the N EECA Service Regulations that deals with initial appointments, prescribes a maximum age of 45 years for the post of Director. Regulation 13(2) provides that a Managing Director is the authority competent to make appointments in pay scales NPG -1 to 5. The post of Director qualifies as an NPG -1 post in accordance with regulation 2(13) of the NEECA Regulations. 13. Appendix-2 to the NEECA Service Regulations deals with the sub-cadre pay scales and number of positions. The post of Director Strategy Management Office i s not a post listed in Appendix-2, which otherwise lists the available positions for Directors in various Directorates. Appendix -3 to the N EECA Service Regulations lists the requisite qualifications, experience and age limits for initial appointment . A s the post of Director Strategy Management Office does not exist under the N EECA Service Regulations, no qualification s and experience are prescribed for such position. What is however common for all posts of Director , irrespective of the Directorate in which such posts exist, is that the maximum age limit for initial appointment to such post is 45 years. 14. The N EECA Service Regulat ions were purportedly amended through an SRO No.346(I)/2024 (dated 25.01.2024 ) which were notified in the Gazette on 05.03.2024 (“Amended Regulations”) and have been impugned before this Court. The legality of the Amended Regulations will be considered later in the judgment. There are, however, two matters to note in view of the W.P No. 3317/2024 P a g e | 11
context of such Amended Regulations. One, that the maximum age for eligibility for initial appointment for the office of Dire ctor has been retained in such Amended Regulations as 45 years. And two, the Amended Regulations substitute Appendix-2 and add the Directorate of MD Secretariat and create the post of Director in NPG-1 Grade to staff such Directorate. Appendix-3 in the Amended Regulations, purporting to replace Appendix -3 in the NEECA Service R egulations in terms of prescribing the qualification, experience and age limit for initial appointment, curiously prescribes no qualification and experience for the post of Director for the Directorate of MD Secretariat. 15. Respondent No. 4 was recruited pursuant to an advertisement issued by N EECA for the post of Director SMO, which prescribed 25 .03.2022 as the last date for submission of applications and guided interested candidates to NEECA's website for detailed terms of reference for the job in question. The key duties and responsibilities prescribed in the TORs were not limited to perform ance of coordination and/ or secretarial tasks for purposes of the Board. Some of the key duties and responsibilities are listed as follows: i. Support and lead to review, update, prepare, and strategize follow up with all the directorates on tasks assigned by the executive management. ii. Coordinate and facilitate provincial implementing arms of the organization in all their secretariat related matters. iii. Oversee the implementation of Strategy initiatives for day- to-day activities ensuring that all the management wings' objectives align with the overall Strategy plan of the organization. iv. Perform the role of a bridge between the organization, its national and international stakeholders/partners, and the management wings for smooth information flow. v. Support the management wings and provincial implementing arms to design and develop programs ensuring adherence to the guidelines under solicited or unsolicited technical assistance, PSDP, concept notes, and briefs especially conforming to applicable laws and/or approved rules, regulations and specifications. W.P No. 3317/2024 P a g e | 12
vi. To maintain and update all confidential record related to executive matters of the organization. The TORs required that the maximum age of the candidate applying for the position should not be more than 40 years on the date of advertisement of the position. Unlike the previous recruitment phase in which the first step in the recruitment process was a written test administered by IBA, the recruitment for the post of Director SMO did not require any written test and was only subject to an interview to be taken by a Selection Committee constituted by the Managing Director. The first important thing to not e about the recruitment process pursuant to which Respondent No.4 was inducted and offered an appointment letter dated 08.04.2022 is that it advertised the need to fill the post of Director SMO which post did not exist under provisions of the N EECA Service Regulations and for which no qualifications had been prescribed therein. The maximum qualifying age prescribed for all posts of Director in NEECA under provisions of the N EECA Service Regulations is 45 years. This remains so even if the Amended Regulations are deemed to have been lawfully issued. The maximum age prescribed for the position of Director SMO was however 40 years, which is the age prescribed for the position of Senior Assistant Dire ctor as per Appendix 3 of the N EECA Service Regulations, a post that is two tiers below the post of Director. 16. The Respondents throughout the hearings were unable to satisfy the Court or articulate any justification as to why the maximum age limit for the advertised post of Director SMO was reduced from 45 years to 40 years in conflict with the requirement of NEECA Service Regulations and the Amended Regulations. By W.P No. 3317/2024 P a g e | 13
reducing the maximum age by five years, Respondent No.3 obviously limited the pool of candidates that were eligible to apply for the said position. The pool of eligible candidates could not have been so limited unless that was the maximum age prescribed by the NEECA Service Regulations which would be applicable across the Board to all recruitments, after such age had been determined to be the appropriate age by the organization as a policy measure and prescribed as such in the NEECA Service Regulations. This is, however, not the case in the matter before us. The maximum age for initial appoint ment to the post of Director within N EECA remains 45 in accordance with the requirements of NEECA Service Regulations. It is only for purposes of recruitment to the post of Director SMO that the age was reduced from 45 to 40, rendering potential candidates ineligible to apply for such position who would fall between the 40 and 45 age…
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