Appointment on Contract Bases Case Law

PLJ 2013 Islamabad 296

Present: Shaukat Aziz Siddiqui, J.

MUHAMMAD ASHFAQ AHMED--Petitioner

versus

ALI ARSHAD HAKEEM, etc.--Respondents

W.P. No. 812 of 2013, decided on 5.6.2013

Federal Board of Revenue Act, 2007--

----S. 23--Service Tribunal Act, 1973--S. 2(9)(b)(ii)--Constitution of Pakistan, 1973, Art. 212--Chairman Federal Board of Revenue--Appointment on contract basis--Condition of open advertisement may be relaxed with prior approval of chief executive--Power of appointment of Chairman FBR--Appointment on key post was made in violation of principle of good governance--Objection regard to jurisdiction of High Court due to specific bar of Art. 212, Constitution--No criteria for appointment of Chairman is provided in FBR Act, 2007--Writ petition is not maintainable--Validity--Objection with regard to locus standi of petitioner on the ground that petitioner was not an aggrieved person within meaning of Art. 199 of Constitution--Writ is not maintainable admittedly, petitioner was an employee of FBR and not a stranger to organization--Petitioner was an aggrieved person and if any person in his estimation brought to organization does not possess requisite qualification--Even otherwise in matters of public interest one need not to be aggrieved himself, therefore, objection was also turned down--Appointment is result of colourable exercise of authority, without due process, non transparent approach, against principles of healthy competition, fairness, openness, merit, offensive to constitutional provisions under no stretch of imagination, appointment of chairman FBR can be termed as credible and in requirement of law applicable--Notification of appointment as chairman FBR giving additional charge as secretary were set aside--Petition was allowed.            [Pp. 301 & 304] A, B & C

Barrister Zafar Ullah Khan & Mr. Abdul Sattar Malik, Advocates for Petitioner.

Mr. Ashtar Ausaf Ali, Advocate for Respondent No. 1.

Mr. Muhammad Anwar Mughal, Advocate for Respondents No. 2 & 3.

Mr. Tariq Mehmood Jehangiri, learned DAG.

Mr. M. Majid, Secretary FBR.

Mr. Zarnab Khattak, Supdt. Estb. Div.

Dates of hearing: 2.5.2013. & 13.5.2013.

Judgment

Petitioner invoked the constitutional jurisdiction of this Court by way of filling instant writ petition with the following prayer:--

"It is, wherefore, most respectfully prayed that:

1.         This august Court may graciously be pleased to declare the Notification No. 31/04/2012-E-1. dated 10.7.20.12 issued by the Respondent No. 2 appointing the Respondent No. 1 as Chairman FBR and subsequent FBR Notification No. 1495-C-l/2012 dated 11.07.2012 illegal and without lawful authority and. thus of no legal effect;

2.         This august Court may graciously be pleased to declare the Notification No. 31/04/2012-E-1 dated 30.7.2012 issued by the Respondent No. 2 appointing the Respondent No. 1 as Secretary Revenue Division and subsequent FBR Notification No. 1664-C-1/2012 dated 30.07.2012 illegal and without lawful authority and thus of no legal effect;

3.         The Respondent No. 2 may kindly be directed to appoint Chairman of FBR and Secretary Revenue Division, Government of Pakistan, on merit as per the letter and the spirit of the laws as laid down in various constitutional provisions, relevant enactments and the principles laid down by the Superior Courts;

4.         During the pendency of this Writ Petition the Respondent No. 1 may kindly be stopped from working at the said positions; and

5.         the Respondent No. 1 be directed to return all benefits and emoluments obtained by him during the course of the illegal appointments;

6.         Any other relief to which the Petitioner may be entitled in the facts and circumstances of the instant Petition may also be granted."

2.  Grievance put forth through instant petition is that Respondent No. 1, has been appointed, Chairman FBR, Islamabad vide notification dated 10.07.2012, and Additional Charge of Secretary Revenue Division has been assigned to him, vide notification dated 30.07.2012.

3.  Learned counsel for petitioner argued that entire process of the appointment of Chairman FBR (Respondent No. 1) is polluted, and tainted with mala fide. It is contended that office of the Chairman FBR is a public office in connection with the affairs of the Federation; this exercise of power purportedly made under Section 3 of the Federal Board of Revenue Act, 2007 has not been exercised by the Respondent No. 2 fairly, openly, reasonably, justly, transparently and in accordance with established norms of good governance; no objective criteria has been followed and in this way an important appointment on a key post was made in a mechanical manner in violation of principle of good governance. Learned counsel for petitioner further contended that real intent and purpose of the Federal Board Revenue, Act of 2007 is to appoint the most competent person having relevant experience and qualifications through open competition and transparent process by sufficiently advertising the post so that the best talent could be attracted if a person has to be imported from the private sector ignoring the deserving Civil Servants. That the process adopted in the summary for impugned appointment is irregular and inadequate for the reasons that firstly summary for the Prime Minister contained only one name whereas normally three names are suggested with comparative qualifications and secondly, summary does not mentions the peculiar skills, expertise, qualifications needed to head the revenue function of the state. Being a good chairman NADRA, that too is a qualitative statement, does not give anybody competence to head FBR. It is argued that position of Chairman FBR and Secretary Revenue Division are purely Civil Service/Cadre positions and these cannot be filled in by non-cadre persons; and power of appointment of Chairman FBR vested in the Respondent Nos.2 & 3 of the Act, 2007 is a sacred trust and this should have been exercised fairly, justly and reasonably as the "Equality of Opportunity" is guaranteed in the preamble and Article 2-A of the Constitution of Islamic Republic of Pakistan. That the impugned appointment is also in contradiction of the Article 4 of the Constitution as due process of law has been mutilated in the appointments. That the office of the Chairman of FBR and Secretary Revenue Division are highly specialized positions, demanding best mind, experience and background in Economics, Taxation, management etc. and these, assignments have a direct bearing on the economic well being of the State and the citizens of Pakistan and social economic justice as promised under Articles 23, 24, 37 and 38 of the Constitution.

4.  On the other hand Respondent Nos.2 & 3 filed their separate reply and parawise comments whereas Respondent No. 1 filed application u/S. 151, CPC for treating and deciding preliminary objections about maintainability of the petition prior to, and to the exclusion of, all other issues and prayed for dismissal of instant writ petition by raising preliminary objections that service matters of Federal Government Department's Civil Servants fall within the exclusive jurisdiction of the Federal Service Tribunal in terms of Section 3(2) of Service Tribunal Act, 1973 read with Article 212 of the constitution of Islamic Republic of Pakistan, therefore, petitioner is debarred from invoking the constitutional, jurisdiction of this Court; that petitioner has no locus standi to file the instant writ petition as no infringement of right has been caused to him. Respondent No. 1 through above mentioned CM contended that, present petition for all intents and purposes, is a petition in the nature, of certiorari as the petitioner is neither directly nor indirectly aggrieved by the notifications under challenge. That petition suffers from laches inasmuch as it was filed after five months of issuance of impugned notification.

5.  Respondent Nos. 2 & 3 through parawise comments contended that the terms and conditions of Civil Servants are regulated by Section 3 of the Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and these rules provide appointment to various posts by any of the following methods:

a.         By promotion

b.         By transfer

c.         By initial appointment.

That in guidelines for appointment on contract basis as contained in the Establishment Division O.M dated 02.03.2000 (Annex-I), it has been clearly provided in paraiii(b) that the condition of open advertisement may be relaxed, with prior approval of the Chief Executive, in cases of intake of qualified persons from the market/ private sector in exceptional circumstances where it is not practicable to observe the said condition.

6.  On facts it is contended that Mr. Ali Arshad Hakeem was appointed as Chairman, Federal Board of Revenue (FBR) with the approval of Prime Minister and Establishment Division notified his appointment as Chairman, FBR on contract basis for a period of one year vide notification dated 10.07.2012. That, Mr. Ali ArshadHakeem was serving as Chairman, NADRA and his performance as Chairman, NADRA was highly commendable, therefore, keeping in view his services and importance of the position of Chairman, he was appointed as Chairman FBR and was also allowed to hold the additional charge of the post of Secretary, Revenue Division with the approval of Prime Minister as the post of Secretary, Revenue Division is usually held by Chairman, FBR and no independent Secretary, Revenue Division is posted. It is contended that Respondent No. 2 with cautious care and observing ground realities proposed appointment of Respondent No. 1 and also sought relaxation of rules for open advertisement in accordance with the provisions contained in the ESTA Code and after fulfillment of codal formalities, the competent authority made the appointment of Respondent No. 1 and as per provisions of law and rules no illegality has been done. It is further contended that under Section 3(3) of the FBR, Act, 2007, the Federal Government is empowered to appoint Chairman, FBR on such terms and conditions as it may determine.

I have heard the learned counsel for the parties and perused the record.

7.  Firstly the preliminary objections raised by the learned counsel for respondents are being dealt with. As far as objection with regard to jurisdiction of this Court is concerned, due to specific bar of Article 212 of the Constitution of Islamic Republic of Pakistan is concerned, to my mind is totally misconceived. Section 2(a) of Service Tribunal Act, 1973 as well as definition provided in Section 2(b) (ii) of the Civil Servants Act, 1973 does not recognize any contract employee as Civil Servant, therefore, objection is overruled. So far as the objection raised by the learned counsel for respondent that, no criteria for the appointment of Chairman, FBR is provided in the Federal Board of Revenue, Act, 2007 and requirement of open advertisement mentioned in the Esta Code is of no consequence as such writ petition is not maintainable is concerned, the latest dictums laid down by the Hon'ble Supreme of Pakistan has enhanced the scope of judicial review with regard to executive actions and decisions made by the public functionaries. To my mind, this objection of the respondents sinked in the ocean of wisdom coming through, dictums laid down in Tariq Aziz-u-Din's case reported as 2010 SCMR, 1301 and Muhammad Yasin's case, reported as PLD 2012 SC 132. So far the other, objection of therespondents  with  regard  to locus standi of the petitioner on the ground that petitioner is not an aggrieved person within the meaning of article 199 of the Constitution of Islamic Republic of Pakistan, therefore, writ is not maintainable is concerned, admittedly, petitioner is an employee of FBR and not a stranger to the organization. The appointment on top slot of organization brings structural changes in the organizational behavior of that particular department; therefore, petitioner is an aggrieved person and if any person in his estimation brought to the organization does not possess the requisite qualification and relevant experience. Even otherwise in the matters of public interest one need not to be aggrieved himself, therefore, this objection of the respondent is also turned down.

8.  Now before proceeding further, I find it appropriate to reproduce complete extract of summary presented to Prime Minister by the Establishment Secretary which is as under:--

"CABINET SECRETARIAT
ESTABLISHMENT DIVISION
SUMMARY FOR THE PRIME MINISTER

Subject:      APPOINTMENT AGAINST THE POST OF CHAIRMAN FEDERAL BOARD OF REVENUE.

The post of Chairman, Federal Board of Revenue Division is presently lying vacant w.e.f 21.01.2012 due to retirement of Mr. Salman Siddique, a BS-22 officer of Secretariat Group and the work of the post is being looked after by Mr. Mumtaz Haider Rizvi, Member (Customs), Federal Board of Revenue Division.

2.  The position of Chairman, Federal Board of Revenue is very important and requires the services of some qualified and professionally sound officer on full time basis, especially with regard to meeting the revenue targets set-forth in the budget for current Financial Year 2012-2013. Besides, the revenue targets, Federal Board of Revenue is also responsible for bringing about the tax reforms and improvement to promote tax culture in the country.

3.  As per Section 3(3) of Federal Board of Revenue Act, 2007, the Federal Government may appoint the Chairman on such terms and conditions as it may determine.Further, SI. 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, (underlining is mine) with prior approval of the Prime Minister, in the cases of intake of qualified persons from the market/private sector in exceptional situations where it is no practicable to observe the said condition.

4.  Mr. Ali Arshad Hakeem has been serving as Chairman, national Data Base Registration Authority (NADRA) since 11th August, 2008. As Chairman NADRA, the performance of the officer remained highly commendable. The list of his achievements as Chairman, National Data Base Registration Authority is annexed.

5.  In view of the foregoing, it is proposed that Mr. Ali Arshad Hakeem may be appointed as Chairman Federal Board of Revenue, on contract basis for a period of two years in relaxation of the condition of open advertisement. In lieu of his appointment as Chairman, FBR, his contract as Chairman, NADRA will stand terminated. The terms and conditions of the officer shall be settled separately.

6.  Approval of the Prime Minister is solicited to the proposal contained at para 5 of the Summary.

Encl: As Above

(Taimur Azmat Osman)
Establishment Secretary

Prime Minister's Secretariat (Public) (Mr. Muhammad Ayub Qazi, Principal Secretary to the Prime Minister), Islamabad.

Establishment Division's U.O No. 1/79/2004-E-4, dated 06th July, 2012."

9.  As is evident from the contents of above summary, the requirement of open advertisement is admitted by the Establishment Secretary but at the same time requested to relax the same on the ground of "exceptional situation" despite repeated questions, learned counsel for the Respondent No. 1 failed to point out any exceptional circumstance or situation on the basis of which condition of open advertisement, was relaxed. Similarly, comments filed by Respondent Nos. 2 & 3 do not contain reference of any "exceptional situation" except that the performance of respondent. No. 2 as performance of Chairman NADRA was commendable. Para-7 of the preliminary objection of Respondent No. 2 is of some, significance, therefore, is being reproduced herein below:--

"The post of Chairman, FBR is a very important post and requires the services of some qualified and professionally sound officer on full time basis, especially with regard to meeting of revenue target set-forth in the budget. Further, SI. 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."

This is an admitted fact that post of Chairman FBR is not only important but sensitive as well. I totally failed to understand that how the qualification, experience, exposure, eminence and performance of any individual can be gauged without inviting others to compete. The approach of picking any individual of personal liking from open market is totally uncalled for and against the principles of transparency, good governance, merit, rule of law and credible process. I am not persuaded by the arguments advanced by learned counsel for Respondent No. 1 that appointment of Respondent No. 1 was infact a horizontal movement being civil servant.

10.  Admittedly, Respondent No. 1 was on contract in NADRA which stand terminated on his appointment as Chairman FBR on contract. Under no stretch of imagination, it can be termed as a horizontal movement as summary prepared by Establishment Secretary, negates the stance of Respondent No. 1. Article 27 of the constitution of Islamic Republic of Pakistan which reads as under:--

"27. Safeguard against discrimination in services.--(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth:

            Provided that, for a period not exceeding (forty) years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan:

            Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex:

            Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act ofMajlis-e-Shoora (Parliament).

Above, article guarantees the equality of opportunity, but appointments made in the manner, subject matter of instant petition violates the command of organic law, therefore, can be termed as un-constitutional. The august Supreme Court through different authoritative pronouncements provided guidelines on the issue, following are being relied:--

(i)         Tariq Aziz-u-Din's case reported as 2010 SCMR, 1301.

(ii)        Anita Turab case, reported as PLD 2013 SC 195.

(iii)       Muhammad Yasin's case, reported as PLD 2012 SC 132.

(iv)       Sh. Riaz-ul-Haq, case in Constitutional Petition No. 53/2007 and Hajj Corruption reported as PLD 2011 SC 963.

11.  Keeping in view the above narrated position, I am fully convinced that appointment of Respondent No. 1 is result of colourable exercise of authority, without due process, non-transparent approach, against the principles of healthy competition, fairness, openness, merit, offensive to the constitutional provisions and besides the dictums laid down by the Hon'ble Supreme Court of Pakistan. Under no stretch of imagination, appointment of Respondent No. 1 can be termed as credible and in requirement of law applicable.

In this view of the matter, Writ Petition is allowed and as a result whereof, the Notifications No. 31/04/2012/E-1 dated 10.07.2012 regarding appointment of Respondent No. 1 as Chairman FBR and No. 31/04/2012/E-1 dated 30.07.2012 giving additional charge to Respondent No. 1 as Secretary Revenue Division are set aside. The Respondent No. 2 is directed to appoint, regular Chairman, Federal Board of Revenue through, competitive, process and as a time gap arrangement most senior regular employee of FBR having requisite qualification, and experience to be appointed Chairman, may be assigned task of Acting Chairman FBR. Respondent No. 2 is directed to evolve competitive process for appointment of Chairman FBR, which must commence with, proper advertisement and be completed within one month but not later than 30th June, 2013.

(R.A.)  Petition allowed