IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE NASIR-UL-MULK, HCJ
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE IJAZ AHMED CHAUDHRY
CIVIL PETITION NO. 2124 OF 2013 &
C.M.A. NOs. 1079 & 4821 OF 2014
(On appeal against
the order dated 10.10.2013 passed by Islamabad High Court, Islamabad in ICA No. 1005/2013)
Ghulam Rasool
… Petitioner
VERSUS
Government of Pakistan
through Secretary Establishment Division, Islamabad
and others
… Respondents
For the Petitioner: Mr. Abdul Rahim Bhatti, ASC
For the Respondent
(3): Mr. Khurram Mumtaz Hashmi, ASC
For Federation: Mr.
Salman Aslam Butt, Attorney General
Mr. Muhammad Waqar Rana, Addl. Attorney
General
Date of Hearing: 30.10.2014
JUDGMENT
CIVIL PETITION NO. 2124 OF 2013
IJAZ AHMED
CHAUDHRY, J.- Petitioner and others, who are serving employees of Inter
Services Intelligence (ISI) and belong to surveillance cadre, being aggrieved
of their promotion policy to next scale had filed a Constitution Petition
before the learned Islamabad High Court. At the time of hearing of the
petition, the respondent No. 3 raised a preliminary objection with regard to
the maintainability of the writ petition, upon which the learned Single Judge
in Chamber after hearing the parties dismissed the Writ Petition by observing
that the petitioners are civil servants and the High Court has no jurisdiction
to entertain the said petition and that the proper forum for the matters in
relation to terms and conditions of the civil servants is Federal Service
Tribunal. The Intra Court Appeal filed by the petitioners also met the same
fate. Hence this petition.
2. We have heard learned counsel for the parties and
have perused the impugned judgments.
3. Admittedly the petitioner is enjoying the status of
civil servant in terms of Section 2(b) of the Civil Servants Act, 1973. His
appointment letter has also been issued under the said Act and the proper forum
for redressal of his grievance was Federal Service Tribunal. The Tribunal is
functional and the petitioner, if so advised, can approach the said forum for
redressal of his grievance. In these circumstances, the impugned judgments are
unexceptionable. The petition is dismissed and leave refused.
ISSUE OF FILLING UP
CERTAIN CONSTITUTIONAL POSTS (C.M.A. NOs. 1079 & 4821 OF 2014)
4. During the hearing of Civil Petition No. 2124/2013
this Court had taken note of the fact that specific posts under the
Constitution and under various statutes are pending and still have not been
filled up. A concise statement in this behalf bearing CMA No. 1079/2014 has
been filed by the Federal Government wherein steps have been outlined for the
appointment of various constitutional posts and the problems the Government is
facing in such appointments. Learned Attorney General for Pakistan has
submitted that as there was no specific prayer made in the said concise
statement, another CMA bearing No. 4821/2014 has been filed. He submitted that the
Federal Government is facing difficulties in appointments to such offices in
view of the direction given by this Court in paras 26 & 27 of the judgment
reported as Khawaja Muhammad Asif Vs. Federation of Pakistan (2013 SCMR
1205); that in the said judgment a procedure has been prescribed for
appointments to certain offices in statutory bodies, autonomous bodies,
semi-autonomous bodies, regulatory bodies etc to be processed through a
Commission; that some of these offices are created by statutes providing their
own procedure for appointment and, therefore, some anomalies would arise in
case the appointments are made in accordance with the directions given in
Khawaja Asif supra judgment and the business of the Federal Government is
suffering. He further added that since assumption of office by the Prime
Minister and the Federal Cabinet, the Federal Government has sincerely tried to
fully comply with the above said judgment regarding the proposed Commission and
initially certain Public Sector Organizations were included in the schedule of
posts under the purview of the Commission but despite the sincere endeavours
there are administrative issues that are creating hurdles. In this regard a list
has also been filed whereby it has been brought to the notice of this Court that
so far only for the following Public Sector Organizations, appointments can be made:-
i) Pakistan Telecommunication
Authority
a) Member Technical
b) Member Finance
ii) Pakistan Television Corporation
iii) Pakistan Steel Mills Limited
According to the list, there are 22 statutory
bodies and 33 Public Sector Companies established under Companies Ordinance,
1984, whose heads are yet to be appointed by the Commission.
5. Learned Attorney General further added that while
making the directions, the provisions of Article 90 of the Constitution where
the power of appointment has been vested in the Federal Government has not been
taken into consideration by this Court; that the contents of para 26 & 27
of the Khawaja Asif supra judgment were in the form of certain recommendations
and suggestions which could not have assumed the status of law. In this regard
he relied on Shahid Orakzai and another Vs. Pakistan (PLD 2011 SC 365).
He further added that various Acts / Ordinances lay down the criteria for
high-level appointments and empower the Federal Government to make such
appointments, which the Federal Government is bound to follow; that such
provisions also inherently envisage the ability of the Federal Government to
adopt any suitable manner, method and policy of vetting, assessing and
selecting suitable candidates for such appointments according to the peculiar
needs and complexities of specific appointments; that when the law provides for
a thing to be done in a particular way, it should have been done in that way and
in no other way; that none of the Acts / Ordinances envisage any forum or body like the Commission; that an
essential function of the Government has been given to the Commission which is
against the law; that the Members of the Commission are not accountable to
anybody and that since the Commission has no legal status, its Members are not
subject to judicial review by the Court, therefore, there is no procedure
available to check the possible abuse of power by the Commission. On the other
hand, he added that the Federal Government or the Prime Minister, as the case
may be, are accountable to the Parliament under the Constitution and also to
the People of Pakistan and their actions are subject to judicial review. He
lastly prayed that the directions contained in Khawaja Asif supra judgment at
paras 26 to 30 may be revisited or clarified.
6. We have heard learned Attorney General for Pakistan
at some length.
7. During the last care-taker Government, a large number
of appointments were made without following any merit or procedure that were
against the Constitutional mandate of a care-taker Government. Khawaja Muhammad
Asif, a Parliamentarian, had filed a petition before this Court under Article
184(3) of the Constitution against the said appointments and this Court had inter alia made following directions:-
“26. 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 and 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
appointments in statutory bodies, autonomous bodies, semi-autonomous bodies,
regulatory authorities to ensure appointment of all the government controlled
corporations, autonomous and semi-autonomous bodies, etc. The Commission should
be 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 year. 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 that 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.
27. The
Code of Practice should provide foundations for transparent merit-based public
appointments. All public appointments must be governed by the overriding
principle of selection based on merit, out of individuals who through abilities,
experience and qualities have a proven record that they best match the need of
the public body in question. No public appointment must take place without
first being recommended by the Commission. The appointments procedures should
be subjected to the principle of proportionality, that is, what is appropriate
for the nature of the post and the size and weight of its responsibilities.
Those, selected must be committed to the principles and values of public
service and perform their duties with highest level of integrity. The
information provided about the potential appointees must be made public. The
Commission may from time to time conduct an inquiry into the policies and
procedures followed by an appointing authority in relation to any appointment.
He may also issue a statement or publish a report commenting publicly on any
breach or anticipated breach of the Code. The appointment of the successful
candidate must be publicized.
.
.
.
.
.
30(e) The appointments
in autonomous/semi-autonomous bodies, corporations, regulatory authorities,
etc., made before the appointment of Caretaker Government shall also be
subjected to review by the elected Government by adopting the prescribed
procedure to ensure that right persons are appointed on the right job, in view
of the observations made in above paras (Paras.Nos.25 and 26)”
8. We have noted that while making such directions, the
provisions of Article 90 of the Constitution were overlooked by this Court.
Article 90 reads as under:-
“90. (1)
Subject to the Constitution, the executive authority of the Federation shall be
exercised in the name of the President by the Federal Government, consisting of
the Prime Minister and the Federal Ministers, which shall act through the Prime
Minister, who shall be the Chief Executive of the Federation.
(2) In
the performance of his functions under the Constitution, the Prime Minister may
act either directly or through the Federal Ministers.”
9. The appointment of a Commission and the power to make
recommendations for such appointments is not in accordance with Article 90 of
the Constitution where the power of appointment has been vested in the Federal
Government. It appears that in the light of the observations made in paras 26
& 27 of the Khawaja Asif supra judgment the legal authority has been vested
in a Commission and its recommendations are being made binding upon the Prime
Minister. It is by now a well settled law that the responsibility of deciding
suitability of an appointment, posting or transfer fell primarily on the
executive branch of the State. It is also a settled law that the Courts should
ordinarily refrain from interfering in policy making domain of the Executive. In
Executive District Officer (Revenue), District Khushab Vs. Ijaz Hussain
(2012 PLC(CS) 917) this Court has held that framing of recruitment policy and
rules thereunder fell in the executive domain; that the Constitution of
Pakistan is based on the principle of trichotomy of powers where legislature is
vested with the functions of law making, the executive with its enforcement and
judiciary of interpreting the law and that Courts could neither assume the role
of policy maker nor that of a law maker. The contents of the said paras were in
the form of certain recommendations, which could not have assumed the status of
law. In Shahid Orakzai and another Vs. Pakistan (PLD 2011 SC 365) the
importance of consulting the Hon’ble Chief Justice of Pakistan has been stated
in the matter of appointment of Chairman of the National Accountability Bureau
and it was expected that such recommendation had to be given effect for all
future appointments. Subsequently in Ch. Nisar Ali Khan Vs.
Federation of Pakistan etc (PLD 2013 SC 568) this Court had clarified that
in the absence of the Hon’ble Chief Justice of Pakistan from the appointment
process of Chairman NAB, the observations in Shahid Orakzai supra case were not
to be treated as binding and that “a
suggestion or recommendation made by the Court in a judgment though entitled to
due respect, deference and consideration, does not travel beyond a suggestion
or a recommendation and it does not by itself assume the status of law. By its
nature and form a suggestion or a recommendation is simply what it is, nothing
more and nothing less.” In Syed Mahmood Akhtar Naqvi and others Vs.
Federation of Pakistan
etc (PLD 2013 SC 195), this Court has held that “whenever there are statutory provisions or rules or regulations which
govern the matter of appointments, the same must be followed”. Keeping in
view the above discussion, it can be said that the matter of appointment of
heads of statutory bodies, autonomous / semi-autonomous bodies, corporations,
regulatory authorities etcetera are governed under specific statutory
provisions which cannot be overlooked or substituted by some other mechanism. We
have noted that various Acts / Ordinances lay down a specific criteria /
qualifications for high-level appointments and empower the Federal Government
to make such appointments. Some of them are (i) Federal Public Service
Commission of Pakistan Ordinance, 1977, (ii) Competition Act, 2010, (iii)
Pakistan Electronic Media Regulatory Authority Ordinance, 2002, (iv) Oil and
Gas Regulatory Authority Ordinance, 2002, (v) NEPRA Act, 1997, (vi) Securities
& Exchange Commission Act, 1997, (vii) Pakistan Telecommunication
(Re-organization) Act, 1996, and (viii) Companies Ordinance, 1984. The above
referred Acts / Ordinances provide a complete procedure of appointments, which
the Federal Government is bound to comply with as mandated under Article 5 of
the Constitution. The Federal Government has been expressly empowered by the
Legislature to make high-level appointments in accordance with the criteria
specified in the concerned Acts / Ordinances. In case of companies incorporated
in the public sector under the Companies Ordinance, 1984, the appointment and
removal of Directors is comprehensively dealt with under the said Ordinance and
the memorandums, rules / regulations framed there under. However, it is also
made clear that the Court’s deference to the Executive Authority lasts for only
as long as the Executive makes a manifest and demonstrable effort to comply
with and remain within the legal limits which circumscribe its power. Even
where appointments are to be made in exercise of discretionary powers, such
powers are to be employed in a reasonable manner. Even otherwise, the policy
adopted by the Federal Government in making appointments is open to judicial
review on the touchstone of the Constitution and the laws made there under i.e.
in case of any illegality in the ordinary process of appointment, this Court as
well as the High Courts have sufficient powers under Articles 184 & 199 of
the Constitution to exercise judicial review. There are similar Commissions in
other countries including the United Kingdom,
Canada and India. However,
all those commissions were made pursuant to specific laws / statutes enacted
for that purpose. In Australia,
the Australian Public Service Commission was established pursuant to the Public
Service Act, 1999. Similarly in Canada,
the Federal Accountability Act, 2006, was enacted by the
Parliament for inter alia putting in
place measures respecting administrative transparency, oversight and
accountability. However, no public appointments commission has yet been
created. No statutory Commission has been crated in Pakistan for examining suitability
of persons for appointment to high public offices. The Government may consider
the establishment of such a Commission through legislation in order to ensure
transparency which would also enable the executive authority to make an
informed decision while making appointments.
10. In view of the afore-referred
circumstances, we clarify that it is the exclusive preserve of the Federal
Government to appoint heads of statutory bodies, autonomous bodies,
semi-autonomous bodies, regulatory bodies etc as also to make appointments on
merits under the Acts / Ordinances wherein certain criteria has been laid down
for such purpose. CMA Nos. 1079 & 4821 of 2014 are allowed in terms noted
above.
11. Now that there are no impediments
in the process of appointments to the offices in the statutory bodies and to
public sector companies referred to in paragraph 4 above, they shall be filled
up without loss of time by the end of December, 2014. A preliminary report of
the progress made towards the appointment shall be submitted by the learned
Attorney General for Pakistan
for our perusal in chambers by the 10th of December, 2014.
CHIEF
JUSTICE
JUDGE
JUDGE
Islamabad, the
Announced on _______________
Approved For Reporting
Khurram
