Civil Miscellaneous No,2 of 2011.
' Through the instant petition, the petitioner has prayed For Restraining the respondent No,10/Rana Zahid Mehmood from performing his duties as Director General NAB, Punjab as well as Director General NAB, Rawalpindi, till the decision of the main writ petition.
2. The learned counsel for the petitioner submitted that Rana Zahid Mehmood was appointed as Director General (BPS-21), National Accountability Bureau (Rawalpindi) on contract basis for a period of one year vide Notification dated 21-4-2010 and after expiry of the said period on 20-4- 2011, he cannot perform his duties as such. He further submitted that respondent No,10 was given additional charge of Director General, NAB (Punjab) vide Officer Order dated 22-7-2010 and the said arrangement could not exceed three months. However, the initial period of additional charge of three months could be extended for another three months with the approval of the Government according to the Rule No,3.35 of National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002. He maintained that the appointing authority of the Director General (BPS-21), National Accountability Bureau, is the Chairman, NAB, who has not extended the period of the present incumbent after 20-4-2011 and as such, respondent No,10 could not legally perform his duties.
3. Conversely, the learned counsel for respondent No,10 contended that the tenure of contract of Rana Zahid Mehmood for one year was not specifically mentioned in the summary, which was approved by the Prime Minister of Pakistan. He claimed that only the terms and conditions of appointment on contract of respondent No,10 was sent to the Prime Minister under section 28(C) of National Accountability Bureau Ordinance, 1999. He contended that neither provisions of. Civil Servant Act, 1973 nor National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002 are applicable to the appointment of respondent No,10. He maintained that in the absence of Chairman, NAB, the Deputy Chairman, NAB being delegatee, was empowered to authorize respondent No,10 to continue to perform his duties temporarily vide order dated 20-4- 2011.
4. Arguments heard. Record perused.
5. Appointment of members of the staff and officers of the National Accountability Bureau are governed by section 28 (a) of the Ordinance, ibid, which empowers the Chairman NAB or an Officer of the NAB duly authorized by him, to appoint such officers and staff as he may, consider necessary for the efficient performance of the functions of the NAB. Similarly, the Chairman, NAB has been authorized to determine the salaries, allowances and other terms and conditions of service of the officers and members of the staff of the NAB, with the approval of the President, in view of section 28(c) of the NAB Ordinance, 1999. As far as the mode of appointment of Deputy Chairman, NAB is concerned, the same is provide in section 7 of the National Accountability Bureau Ordinance, 1999, which envisages the said appointment by the President in consultation with the Chairman, NAB.
Likewise, Section 6(iv) and section 34(A) of National Accountability Ordinance, 1999, empower the Chairman to delegate by an order in writing any of his powers to and authorize performance of any of his functions by, an officer of the. NAB as he may deem fit and proper.
6. From the record, it is evident that the Chairman NAB vide order dated 15-10-2010 had delegated certain powers in terms of sections 7-A and 34(A) of the NAB Ordinance, 1999 to the Deputy Chairman, which included the service and other matters pertaining to the officers up to BS-20/D.G.
Or equivalent. The Chairman, NAB had also delegated the power to the Deputy Chairman to preside over all the departmental boards for the appointment and promotion of all officers up to BS-20 as per National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002 and appointments of Experts in terms of section 28(f) of NAB Ordinance, 1999. A plain reading of the order dated 15-10-2010 would reveal that the Deputy Chairman did not possess any delegated power to appoint any officer in B.S.21 much less than extending the tenure of contract of an officer, who was initially appointed by the Chairman, NAB, with the approval of the Primer Minister of Pakistan.
7. It is also worth consideration that at present the office of the Chairman NAB is vacant. It has been held in the ease of "BANK OF PUNJAB and another v. HARIS STEEL INDUSTRIES (Pvt.) Limited" (PLD 2010 SC 1109), that provisions of section 6(C) of the National Accountability Bureau Ordinance, 1999 permit a Deputy Chairman to act as Chairman NAB only when the Chairman is available but is temporarily absent or is temporarily unable to perform functions of his office e.g. On account of illness, etc. And the said provision did not allow a Deputy Chairman to act as the Chairman, when the said office was vacant.
8. Admittedly, Rana Zahid Mehmood/respondent No,10 was appointed as Director General NAB, Rawalpindi in BPS-21 by the Chairman NAB with the approval of the Prime Minister of Pakistan vide Notification dated 21-4-2010 for a period of one year. The said period of his appointment as Director General NAB (Rawalpindi) has expired on 20-4-2011. However, the Deputy Chairman NAB temporarily allowed Rana Zahid Mehmood to function as Director General NAB (Rawalpindi) with additional charge of Director General NAB (Punjab) as an interim arrangement vide order dated 20-4-2011. Interestingly, despite conceding the legal position in the order dated 20-4-2011 that the extension in the contract of the Director General could only be granted by the competent authority i.e, Chairman NAB, the Deputy Chairman NAB has allowed Rana Zahid Mehmood to continue to perform duties temporarily. Apparently the impugned order dated 20-4-2011 has been passed on the basis of exceptional circumstances and compelling administrative reasons. Suffice it to observe that the existence of exceptional circumstances, whatsoever, do not vest any power or authority on a public functionary knowingly to pass an illegal and unauthorized order,
9. Moreover, the additional charge of a vacant post could only be given for an initial period not exceeding three months with the specific approval of the Chairman, according to Rule 3.35 of National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002.
However, the same may be extended for another three months (i.e, not beyond a total period of six months), with the approval of the government. Admittedly, respondent No,10/ Rana Zahid Mehmood was given the additional charge of Director General NAB (Punjab) vide order dated 22- 7-2010 and the aforementioned period of six months has already expired.
10. Finally, the Deputy Attorney General submitted a report in the court today, on behalf of respondent No, 1/Government of Pakistan, wherein it is conceded that Rana Zahid Mehmood has got no right to act as Director General NAB Punjab after the expiry of period of his contract.
11. In view of the above, it is established that period of contractual appointment of respondent No,10/Rana Zahid Mehmood as Director General NAB (Rawalpindi) as well as period of his additional charge as Director General NAB (Punjab) has expired on 20-4-2011 and 21-1-2011, respectively. The instant civil miscellaneous petition is accordingly, allowed and respondent No,10/Rana Zahid Mehmood is restrained from performing his duties as Director General NAB Rawalpindi with additional charge of Director General NAB Punjab, with immediate effect.