' QAZI FAEZ ISA, C.J.--- The petitioner No,1 is the Balochistan Irrigation and Power Employees Union, Quetta ("the said Union") and has filed the petition through its President, whereas the petitioner No,2 is the General Sedetary of the Union. The said Union was registered on 19th of August, 1974 under the Industrial Relations Ordinance, 1969. The petitioners state that the Irrigation and Power Department of the Government of Balochistan has carried out various projects including construction of dams, tube-wells and other matters relating to irrigation. That vide notification dated 31st January, 2001, the Government of Balochistan established a separate Water Resources, Planning, Development and Monitoring Directorate (hereinafter the "Directorate of Water Resources") to, "function under control of Irrigation and Power Department Balochistan" vide Notification dated 6th February, 2001. There are more than 800, persons employed by the Directorate of Water Resources and it has more than 30 drilling machines for drilling of tube-wells as well as other equipments, and has implemented different Projects entrusted to it by the Government of Balochistan. It has a success rate of 90% in respect of the tube-wells drilled whereas private drillers have a failure rate of 90%. The petition was filed as twenty public sector tube-wells were to be drilled and developed through the Balochistan Development Authority ("BDA") instead of through the Directorate of Water Resources Directorate / Irrigation and Power Department.
2. The facts of the case are that the Prime Minister of Pakistan, vide Prime Minister's Directive No,388, approved an amount of Rs,30 million for drilling and development of twenty tube-wells in the area that fell within electoral constituency of the National Assembly (NA.267), from where Mr. Humayun Aziz Kurd was elected as a member of the National Assembly and who was appointed as a Minister in the Federal Cabinet. Mr. Humayun Aziz Kurd wrote letter dated 3rd February, 2009 to the Secretary, Irrigation Department, Government of Balochistan, "recommending the names of the following persons for installation of tube-wells", and the names of twenty persons are mentioned.
The Government of Balochistan's Irrigation and Power Department wrote to the Director General of the Directorate of Water Resources to expeditiously carry out the said work, and the Directorate of Water Resources prepared a PC-1 wherein was mentioned the estimated cost of drilling and development of the said twenty tube-wells ("the said works"). However, instead of having the said works executed through the Directorate of Water Resources/Irrigation and Power Department a tender notice was published, in daily Jang of 20th May, 2009, by BDA in respect of the said works.
The tender notice (translated into English from Urdu) is reproduced hereunder:--- {{TABLE}} S.No.Works/name of schemesEstimated amount (1)Muhammad Yousaf Kurd Paingao, Dasht District Mastung. Rs. 2,176,000 (2)Tahir Aziz Kurd Paingao, Dasht District Mastung (800 feet deep) Rs.2,176,000 (3)Rasheed Aziz Kurd, Darwaza Dasht District Mastung (800 feet deep) Rs.2,176,000 (4)Mir Abdul Samad District Mastung (800 feet deep) Rs.2,176,000 (5)Abdul Malik, Malikabad Dasht District Mastung (800 feet deep) Rs.2,176,000 (6)Muhammad Khalid Siyapusht Dasht District Mastung (800 feet deep) Rs.2,176,000 (7)Haji Taj Muhammad Kurd, Paingao Dasht District Mashing (800 feet deep)Rs.2,176,000 (8)Abdullah Theramil District Mastung (800 feet deep) Rs.2,176,000 (9)Muhammad Aslam Kurd, Umer Dor Dasht District Mastung (800 feet deep)Rs.2,176,000 (10)Saleh Muhammad Sohrab District Kalat (800 feet deep) Rs.2,239,000 (11)Abdul Majeed Kapato Kalan District Kalat (800 feet deep) Rs.2,239,000 (12)Muhammad Asim, Asimabad, District Kalat (800 feet deep) Rs.2,239,000 (13)Muhammad Sharif, Killi Asimabad Dhadar, District Kachi (500 feet deep) Rs.1,528,000 (14)Mir Nawaz Jatoi, Sunny District Kachi (500 feet deep) Rs.1,528,000 (15)Sardar Samandar Khan Jatoi Sunny District Kachi (500 feet deep) Rs.1,528,000 (16)Nawabzada Khalid Khan Magsi U/C Bareja, District Jhal Magsi (500 feet deep)Rs.1,629,000 (17)Nawabzada Tariq Khan Magsi U/C Bareja, District Jhal Magsi (500 feet deep)Rs.1,629,000 (18)Aurangzaib Alamgir Magsi U/C District Jhal Magsi (500 feet deep) Rs.1,629,000 (19)Muhammad Noor Baloch, U/C Gawani, Garishanal, District Khuzdar (500 feet deep)Rs.1,581,000 (20)Mir Majeed Abroo U/C Katthan(Ahmed Shah Pir) District Bhag (500 feet deep)Rs.1,581,000 {{TABLE}}
3. The following prayer has been made in the petition:--- "(a) the petitioners' department i,e, Directorate of Water Resources, Planning, Development and Monitoring Balochistan is entitled to award of work i,e, excavation of 20 tube wells in different areas of Balochistan; (14 the respondent is not entitled to award work of (2) tube wells to any private drillers whose work/rate of success are not satisfactory for the purpose of excavation of tube wells etc.;
(c) That the tender notice dated 28-5-2009 has been issued without lawful authority and the same is in violation of the principles of natural justice;
(d) The respondent be directed to entrust the work to the Directorate of Water Resources, Planning, Development and Monitoring Balochistan who has already submitted PC-1 for the excavation of twenty (20) tube wells in different areas of Balochistan;
(e) to further declare that if work has been awarded to any private drillers that is of no legal effect and has been awarded illegally, without adopting due process of law and completing all the codal formalities and also liable to be cancelled; (f)Or to pass any other order as this Hon'ble court may deem fit and proper in the circumstances of the case, which cost, in the interest of justice."
4. The petition was filed on 6th June, 2009, but BDA filed comments after almost three years on 24th April, 2012. The petitioners had also filed an application for stay (C.M.A. No,1082 of 2009) but no orders were passed thereon as we awaited the comments. That, vide order dated 28th April, 2010, BDA was specifically directed to file comments and to explain, with support of documents, the mechanism for the installation of tube-wells and whether permission had been obtained from competent authority before carrying out such work. The order sheet of 24th August, 2010 reveals that the learned Additional Advocate-General complained that despite writing several letters to BDA for providing comments the same were not been provided. On 20th December, 2011 the following order was passed:--- "This petition has been filed on the ground that the work of the Balochistan Irrigation and Power Department has been ordered to be executed through the Balochistan Development Authority (BDA).
' Learned counsel for the BDA is directed to place on record the fresh appointment letter of the Chairman, BDA, after expiry of his earlier tenure and also submit reply to the following queries: Whether the BDA is authorized to execute the works as per the Balochistan Development Act, 1974?
(ii) What is detail of the employees with their skills and expertise, if any, for the implementation of the irrigation works?
(iii) What is the mechanism of managing/maintaining the works by the BDA after its completion?
Any other information necessary be also submitted?
' The BDA should also explain the detail of assigned works pertaining to the execution of works of the different departments.
' The learned Additional Advocate-General to submit report as to how and under which authority, the Planning and Development Department (P&D) assigned the allocation of the works pertaining to different departments to the BDA and what is the criteria of maintaining the works?
' The matter is adjourned to be fixed in the second week of March, 2012."
5. On the next date of hearing, i,e, 13th March, 2012, the learned Additional Advocate-General again complained that BDA had not provided comments. Consequently, it was ordered that if comments are not filed and order dated 20th December, 2011 is not complied with the Chairman BDA to be present in court along with his explanation. BDA eventually filed comments on 24th April, 2012, wherein it was stated that the Finance Department of the Government of Balochistan had authorized an amount of Rs,38,934,000 (Rupees thirty eight million, nine hundred and thirty four thousand) for BDA to be paid "from the Provincial Consolidated Funds" for the said works. It was further stated that after receiving the said money BDA invited tenders through advertisement published in daily Jang dated 28th May, 2009 and that the said works had been completed, however, without providing any details or particulars of the completion of the said works. The comments were filed under the signature of Mr. Naseer Ahmed Baloch, Chairman BDA, but at the relevant time Mr. Qambrani was Chairman BDA. BDA was arrayed as respondent No,1 through its Chairman, and the non-fling of comments by BDA and non-compliance of specific directions of the court resulted in certain facts coming to light, including that Mr. Qambrani had reached the age of superannuation on 20th October, 2011, but continued in the position. Of Chairman BDA. In this regard Mr. Qambrani had issued an "order" dated 27th October, 2011 (annexure J to the reply filed by Mr. Qambrani) in his own favour, reproduced hereunder:--- "ORDER NO.BDA/HQs/Admn(Per)/2001. With the prior approval of the competent authority and in order to compensate Mr. Saadat Anwar Qambrani (C&W/B-20), presently posted as Chairman Balochistan Development Authority, is allowed to serve the Government of Balochistan for the period from 1st November, 2011 to 19th October, 2014 (both days inclusive), in lieu of the period from 17th November, 2000 to 5th November, 2003 when he remained out of active Government service.
2. No pensionery [sic] benefits beyond the date of his superannuation shall be admissible to him.
' Saadat Anwar Qambrani Chairman"
' And on the same day (27th October, 2011) that he had appointed himself Mr. Qambrani noted (annexure 'V' to the reply filed by him) that he had, "resumed charge of the post of Chairman B.D.A., as against ex-cadre post under BDA Act, 1974, on 1st November, 2011, with a view to - be compensated for the period from 17-11-2000 to 5-11-2003 when the undersigned remained out of Government service".
6. That BDA was tardy in the filing of comments and had disobeyed the directions of the court to do so. BDA is headed by its Chairman who is responsible for the proper conduct of the affairs of BDA.
Mr. Qambrani had held the post of Chairman at the material time and had re-employed himself, we therefore issued notice to him vide order dated 2nd April 2012, relevant portion thereof is reproduced hereunder:-- "Under such circumstances, before proceeding further with the matter and as Mr. Saadat Anwar Qambrani is not before us, it would be appropriate to issue notice to Mr. Saadat Anwar Qambrani to show the legality of the order issued by himself in his own favour. We also call upon the learned Additional Advocate General to assist us on the question whether a person can pass an order in his own favour and whether the said order was competently issued having not been issued with the approval of the Chief Secretary, rather contrary to his refusal. Learned Additional Advocate General should also assist us on the powers if any vesting in the Hon'ble Chief Minister and whether the order of the Chief Secretary can be disregarded by him, which pertains to the matter of -a civil servant and whether the Chief Minister is competent to pass an order in contravention of the applicable law, rules and regulations. Since we have been informed that Mr. Saadat Anwar Qambrani continues to hold a post after his retirement the learned Additional Advocate-General should also assist us as to under what provision a retired government servant can be called to continue to provide services of a civil servant."
Pursuant to the aforesaid order Mr. Qambrani appeared before us on 25th April, 2012 and stated that he now holds the office of Member Technical of the Chief Minister's Inspection Team ("CMIT").
He however did not explain when he had relinquished the post of Chairman. Since Members of the Chief Minister's Inspection Team are serving civil servants, we put Mr. Qambrani on "notice in writ of quo warranto as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation". The following relevant extracts from the said order are reproduced hereunder:- "Learned Advocate-General has produced the personal file of Mr. Saadat Anwar Qambrani. Mr. Saadat Anwar Qambrani is present and states that he is presently holding the post of BPS-20 as Technical Member, CMIT, and that he attained the age of superannuation on October 31, 2011."
"Learned A. -G. Further stated that Mr. Saadat Anwar Qambrani should be put on notice in writ of quo warranto, as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation. We agree with the suggestion of learned A.-G. Mr. Saadat Anwar Qambrani, who is present before us, is put on notice as to how he is holding or purporting to hold a public office and to show under what authority he claims to hold that office after attaining the age of superannuation. As Mr. Saadat Anwar Qambrani is put on notice he may file reply/counter affidavit."
7. Syed Ayaz Zahoor, Advocate filed his Vakalatnama on 9th May, 2012 and sought time to file reply/counter-affidavit on behalf of Mr. Qambrani, however, no reply/counter-affidavit was filed by Mr. Qambrani on the next date of hearing, nor on the date of hearing after that. We were therefore constrained to restrain Mr. Qambrani from carrying out any function of the Government of Balochistan or Pakistan. In the meanwhile, Mr. Qambrani approached the Hon'ble Supreme Court, which vide order dated 15th June, 2012 was graciously pleased to direct that this case may be disposed of "preferably within a period of one month", however, we were prevented in this regard on account of the repeated adjournments that were sought. On 8th August, 2012, a date fixed as per choice of learned counsel for Mr. Qambrani, adjournment was sought on his behalf, and it was again sought on 11th September, 2012. Subsequently, on 26th September, 2012, the Government of Balochistan through Additional Chief Secretary, (P&D) and Secretary Irrigation Department were ordered to be arrayed respectively as respondents Nos.3, 4 and 5 to ensure that the view point of the Government of Balochistan, which had allocated the said works to BDA and had appointed Mr. Qambrani after his attaining the age of superannuation should not go unattended, however, the Government of Balochistan did not file any comments nor brought on record the documents in this regard to justify Mr. Qambarni's appointment and left it to the learned Assistant Advocate-General ("A.A.-G.") to justify the appointment.
8. In view of the important constitutional points involved in the petition Messrs Muhammad Aslam Chishti and Baz Muhammad Kakar, Advocates were appointed as amici curiae vide order dated 24th May, 2012, "to assist on the point whether a government servant can hold public office after attaining the age of superannuation" generally and in the context of Mr. Qambrani. We shall be deciding this and the points raised in the petition separately. Firstly, we attend to the subject matter of the petition.
9. Mr. Muhammad Riaz Ahmed, Advocate learned counsel for the petitioners restricted his arguments to the matter of the said works. Learned counsel stated that the Government of Balochistan had established the Directorate of Water Resources and it and its parent department, the Irrigation and Power Department of Balochistan, had the requisite manpower, machinery and technical know-how to carry out the said works, as demonstrated by the successful completion of many such projects in the past. He further stated that the PC-1 had also been prepared. By the Directorate of Water Resources in respect of the said works, but for no rhyme or reason the said works were handed over to BDA. Such works executed through BDA also place an additional burden on the exchequer as admittedly BDA charges an additional 4% as service charge it was next contended. Learned counsel' stated that the incompetence of the BDA can be gauged from the tender notice which mentioned the names of individuals rather than the area, and the same was done to benefit the said individuals and to politicize the said works for the advantage, of Pakistan Peoples Party's MNA and Federal Minister, Mr. Humayun Aziz Kurd. He stated that the tender notice should not have mentioned the name of any individual as the said works were being paid for by the public. The tender notice was published on 28th May, 2009 and the date for obtaining of tender form was till 1st June, 2009, and tenders were to be opened on June, 2009 at 12-30 p.m. Which, as per learned counsel, was insufficient time and that the entire exercise was carried out with a view to benefit certain predetermined parties. He stated that the private contractors/drillers do not possess proper drilling machinery nor have requisite qualifications or experience and are known to use substandard material and tube-wells drilled and developed by them either do not work or are not long lasting. He further said that there is no proof that the said works had been undertaken and completed and who are enjoying the benefit thereof.
10. Messrs H. Shakil Ahmed and Ayaz Swati, the learned counsel representing BDA, stated that the Government of Balochistan had decided to assign the said works to BDA and had made available Rs,38,934,000, and that the said works had been completed, therefore, no purpose will be served in declaring the same illegal or unconstitutional at this juncture. By referring to the comments filed by BDA it was stated that the Government of Balochistan had assigned several departmental works under the Public Representative Program to BDA and it is for the Government of Balochistan to determine which works BDA should carry out and BDA cannot answer for the Government of Balochistan why it had assigned the said works to BDA. Reference was also made to section. 16 of the Balochistan Development Authority Act, 1974. Learned council controverted the allegation that the works were not given to competent private contractors. He however conceded that the tender notice ought not to have mentioned the names either of Mr. Humayun Aziz Kurd, MNA and Federal Minister or the names of twenty individuals and instead the details of the said works and the areas of their respective execution should have been identified. Learned counsel however did not attend to the allegation as to why only three days' notice for submitting of tender forms was provided nor referred to any instruction, regulation or rule to justify that such period was sufficient and reasonable. Learned counsel also did not attend to the other matters noted herein.
11. That since we were not receiving proper assistance, we summoned the Chief Secretary. Mr. Babar Yaqoob Fateh Muhammad, the Chief Secretary Balochistan, stated that the said works were assigned by the Government of Balochistan before he had assumed office and as such is not in a position to comment upon the wisdom of the same-. He however stated that BDA should not be permitted to be a substitute to the Government of Balochistan, and that the role envisaged for BDA was- to act as an engine of development and to attract private investment to compliment the activities of the Government of Balochistan. He stated that the People's Representative Program is part of the PSDP and members of the Provincial Assembly can spend up to Rs,50 million (Rupees fifty million) from the same. He further stated that each MPA can identify schemes of up to Rs,250 million (Rupees two hundred and fifty million). As regards the members of National Assembly and Senate the Federal Government determines the amount that is made available for schemes to be earmarked by them. Setting out the history of enabling parliamentarians to identify schemes and the amount that may be incurred in respect of such schemes, he stated that this concept was first introduced by General Zia-ul-Haq, and none of the successive governments either in the Provinces or in the Federation have abandoned his legacy, but on the contrary have increased the amounts in respect of such schemes, and that there remains very little money with the different government departments to undertake works that are required to be done. We were further informed that there is no law governing the same.
12. In view of the fact that no stay was granted with regard to the said works and the same were stated to have been undertaken and completed, it would not be appropriate to pass any order with regard. To the legality thereof at this juncture. We however consider that the issue with regard to BDA carrying out the works of other government departments requires attention, and to ensure the best utilization of scarce public resources and to optimize efficiency, guidelines may appropriately be issued in the public interest. The Chief Secretary correctly pointed out that a tendency has developed in the Province to assign to BDA works of the different departments of the Government of Balochistan, which could be better undertaken by the departments themselves, and these departments are left bereft of funds, and without requisite resources cannot carry out works under their respective domains. BDA is a statutory body setup by the Balochistan Development Authority Act, 1974 as its preamble stipulates, "for the promotion of the economic and industrial development of Balochistan and for matters ancillary thereto." Neither did the Provincial Legislature envisage BDA's role as a substitute for the different departments of the Government of Balochistan nor can it act as such. BDA is governed by its Board of Directors (subsection (2) of section 4) and it is required to, "act on sound principles of development and economic planning and shall be guided on the following matters and other matters of policy by such directions as the Government may from time to time give." The stipulated matters are the approval of annual budget, the annual development programme, the five-year development plan, sector wise allocation of funds for projects included in the said plan and programme, selection of areas for the implementation of projects/schemes, et cetera. In case the Board failed to comply with any directive of the Government, the Government has been empowered to remove directors, including the chairman, from office, but there is neither day to day supervision nor control over the functions of the BDA or its Board by the Government of Balochistan.
13. 'Section 16 of the Balochistan Development Authority Act governs the functions of BDA, and is reproduced hereunder:--- "16. (1) The following shall be the functions of the Authority, namely:
(a) Preparation and execution of comprehensive development programmes, including projects and schemes relating to land and water development, power, agriculture, industry and activities ancillary thereto , for the economic uplift of relatively under-development areas to be notified by Government;
(b) Planning, promoting, organizing and implementing projects for:
(i) mineral exploitation and development including establishment of mineral-based industries: and
(ii) establishment of such other industries as Government may direct.
(2) Notwithstanding anything contained in subsection (1) the Authority shall perform such other duties and functions as Government may, from time to time, assign to it."
' It is noteworthy that whilst clause (a) of subsection (1) of section 16 envisages water development and agriculture schemes the same have to be in respect of areas to be notified by the Government, however, no such notification was placed before us with regard to the said works nor did the same constitute a part of any annual development programme or a five-year development plan. It was incumbent on BDA's Board, headed by its Chairman, to have either sought notification of the areas or should have incorporated the said works in the annual development programme or the five-year development plan before embarking thereon, but BDA failed to do so.,
14. BDA also violated the provisions of The Balochistan Ground Water Rights Administration Ordinance, 1978 ("Ordinance") as it did not obtain the permission of the District Water Committee as envisaged in section 4(c) of the said Ordinance, which permission may be accorded amongst other things by ensuring "that the extraction of water by a permit holder does not cause depletion of perennial stream or any other perennial source of water." Contravention of the provisions of the Ordinance is punishable, "with imprisonment or either description for a term which may extend to one year or with fine or with both." Water is a very scarce resource in Balochistan and it is essential that the same be only extracted in an environmentally sustainable manner keeping in sight the rate of extraction and recharge of the underground aquifer or stream. Illegal and unsustainable extraction of water is fast depleting aquifers and exposing the people of Balochistan to face an unprecedented environmental catastrophe. With every passing year, wherever water is extracted through pumps in Balochistan, the water is to be found further and further below the ground, and the time is not far, if proper measures are not taken, that aquifers dry out or the water level falls so far below that water pumps cannot extract it or the water in the aquifer, due to high extraction and low recharge, becomes brackish and undrinkable. Ground water in aquifers accumulates over a period of hundreds of thousands of years, but is being mined at an alarming rate and in an unsustainable manner. It has been aptly said that, 'We never know the worth of water till the well is dry' (Thomas Fuller, 1732). The same applies to the manner in which an MNA secured public funds for the drilling of twenty tube-wells and earmarked twenty beneficiaries for this largesse. In view of the aforesaid legal provisions we can conclude that BDA acted in excess of authority and violated the provisions of the Balochistan Development Authority Act, 1974. BDA by failing to obtain permission under The Balochistan Ground Water Rights Administration Ordinance, 1978 violated its provisions. However, as stated above we are not passing orders to undo what has already been done.
15. The manner in which the tenders were invited by BDA also left much to be desired. Insufficient time was provided to potential bidders to participate in the tender, as only three clear days cannot .Be deemed to be either sufficient or reasonable time. Political capital was also permitted to be made. The tender that was published highlighted the name of Mr. Humayun Aziz Kurd and mentioned twenty individuals. It was completely inappropriate to name a Federal Minister and 20 individuals in the said advertisement. The only possible explanation for doing this was to help him gain political mileage. Propagating and promoting individuals is not permitted by BDA's law, and is even otherwise unbecoming of a statutory authority. A park in Quetta was named after the Prime Minister of Pakistan, namely Syed Yousaf Raza Gilani, and this court, in the case of Chamber of Commerce and Industry. v. Director-General QDA (PLD 2012 Quetta 31), had directed that the Quetta Development Authority, which had constructed and named the park, should change the name of the park, and not to name it after a living person. It would be useful to reproduce the following portion from the judgment:--- "In a democratic dispensation the use of public funds in such manner places the person so named in a position of advantage vis-a-vis the competing political forces. The people also may be misled into believing that the person whose name adorns a public place paid for the same out of his own personal funds. Election rules would also be flouted if an unfair advantage is gained by a political party or person against those his party or he may be contesting against. Justice, fairness and equity mandates maintaining a level playing field." [at page 53D]
16. That none of the official respondents explained why the said works were executed through BDA.
The Chief Secretary stated that BDA is not a substitute, nor should be used as substitute, for the government, and that BDA should act as an engine of development and by raising money itself rather than being totally dependent on the government, as it presently is. We find ourselves in agreement with the. Chief Secretary. Unfortunately, as in this case, BDA is carrying out the functions of the different departments of the Government of Balochistan The functions of government are thus duplicated at the cost of the people of this province. BDA is an autonomous statutory body having its own functions as stipulated in its Act, but it is found to be encroaching on the functions of government. It does not stand to reason to have the same work done by government departments as well as by neither BDA as then neither the department nor BDA assumes responsibility for the same. Such practice also results in a bloated bureaucracy and BDA, both of which are paid for by the general public In the instant matter. BDA simply acted as the middleman as the said works were undertaken by private contractors. If the said works were to be executed through private contractors then the Government Department should have itself called for the tenders. The Directorate of Water Resources is part of the Irrigation and Power Department and as its name suggests specializes in matters such as the said works, and therefore was better placed to execute the said works itself, or if it was to be carried out by private contractors, to oversee/supervise the execution of drilling and development of the tube-wells, rather than assigning the said works to BDA which does not have such specialist knowledge. BDA after execution of the said works did not retain the same and is supposed to have handed the same over to the concerned department for the benefit of the public, but this was apparently not done.
Who therefore has assumed the ownership of the same is a mystery. Moreover, executing the said works through BDA resulted in an additional expenditure of 4% as such amount is paid to BDA as service charges. Therefore, having the said works executed through BDA was neither in accordance with law, good governance, transparency, logic or basic common sense.
17. That we also need to attend to the misunderstanding that the Government of Balochistan and BDA are synonymous. This is not correct. The Government of Balochistan and BDA stand on different footings. Whereas BDA is governed by its statute the government departments are to be run in accordance with the Balochistan Government Rules of Business, 1976 (hereinafter the "Rules of Business"), which have been enacted pursuant to Article 139 of the Constitution of the Islamic Republic of Pakistan. Rule 3 (1) of the Rules of Business provides for the allocation of business amongst the different departments of the government, it stipulates, that, "The business of Government shall be classified and distributed amongst the several departments specified in Schedule I" BDA is not amongst the 'List of Departments' mentioned in Schedule I. The manner in which a department runs is very different from the manner in which BDA should run. Each department consists of a Secretary who "shall be the official head of the department and shall be responsible for its efficient administration and discipline, and for proper conduct of business assigned to the department" (Rule 4) and the role of the Minister of the department is with regard to "the framing of policy" (Rule 5). Sub-rule (1) of Rule 6 stipulates as under:- "The Secretary shall be responsible for the careful observance of these rules in his department. If any doubt or dispute arises as to the interpretation of these rules, it shall be referred to the Chief Secretary, whose decision shall be final. The Chief Secretary shall obtain the orders of the Chief Minister, where necessary."
' The "Functions and Powers of the Chief Secretary" are mentioned .In Rule 10 and he is designated as the "official head of the Secretariat." But, unfortunately, it is observed that ministers, and even chief ministers, assume to themselves the powers vesting in bureaucrats, and often without resistance. Consequently everything gets politicized with adverse consequences for the citizens and the State. We will be considering how the Rules of Business were violated to accommodate Mr. Qambrani.
18. With regard to the matter of the holding of public office by Mr. Qambrani after attaining the age of superannuation Messrs Syed Iftikhar Hussain Gilani and Syed Ayaz Zahoor, Advocates appearing for him, submitted that the petition did not raise this issue and the same cannot be raised in collateral proceedings and that this court cannot examine the mind of the appointing authority.
Reliance was placed upon the case of Masood-ul-Hassan v. Khadim Hussain (PLD 1963 Supreme Court 203), Manzoor Hussain Gilani v. Sain Mullah (PLD 1993 Supreme Court (AJ&K) 12), Parameswa ran v. State Prosecutor (AIR 1951 Travancore-Cochin 45) and Hamdullah v. Saifullah Khan (PLD 2007 SC 52). Syed Iftikhar Hussain Gilani, learned counsel for Mr. Qambrani, also referred to the reply submitted by Mr. Qambrani and the documents attached therewith. In this regard he stated that Mr. Qambrani was due to retire on 31st October, 2011, but before such date vide notification dated 27th October, 2011, his tenure as Chairman BDA was continued for the period from 1st November, 2011 to 19th October, 2014 (both days inclusive) to compensate him for the time he remained out of active government service. He next referred to Notification No,S.VIII2(1)/Gen:/2012-S&GAD dated 1st February, 2012, whereby Mr. Qambrani was appointed as Member Chief Minister Inspection Team (Technical-II), "against newly created post." This notification further stipulated that, "The terms and conditions of his service will be notified later on."
However, we were informed that no further notification was issued. Upon a query as to what was Mr. Qambrani's salary and other benefits, learned counsel stated that he had been working without receiving any remuneration until he was suspended vide order dated 25th May, 2012. Learned counsel further stated that a retired government servant could be reappointed and in this regard referred to section 14 and section 23 of the Balochistan Civil Servants Act, 1974 and the Estacode.
19. It will be appropriate to first consider the objection taken by Mr. Qambrani's counsel that the appointment of Mr. Qambrani cannot be considered in what he categorized as collateral proceedings and that this court cannot consider the mind of the appointment authority. With regard to the first contention and the cases relied upon, the same are, in our humble opinion, either not relevant or the principles enumerated therein are not applicable in this case. Masood-ul- Hassan v. Khadim Hussain (supra) was a case in which the authority that had made the appointment was not made a party, which is not the position in this case, and the High Court had determined that the President of the Municipal Committee did not have the power to remove Khadim Hussain, therefore, another member of the Municipal Committee, viz. Masood-ul-Hasan, could not seek his removal without seeking an order in the nature of writ of quo warranto, which he did not do. The facts of Masood-ul-Hasan's case and the ratio thereof have no application to the facts of this case. In the second cited case of Manzoor Hussain Gilani v. Sain Mullah the Hon'ble Supreme Court of Azad Jammu and Kashmir held that, "A writ of quo warranto in particular is not to be issued as a doctrinaire approach" and that, "only the violation of law pertaining to the matters which are directly related and immediately preceded the appointment of an office holder can be considered" are propositions with which we don't need to take issue as the same are not relevant for the purpose of this case. The third case that was cited was of Parameswaran v. State Prosecutor in which the life imprisonment awarded to an accused was required to be confirmed by the High Court, and was confirmed, but thereafter leave to appeal was sought on the ground that the bench which confirmed the same was not properly constituted, since the Chief Justice, who was one of the two members of the bench was appointed in contravention of the Indian Constitution Act. It was held that the appointment of the Chief Justice could not be challenged in this collateral manner and after he had decided the case before him. This can hardly be equated with Mr. Qambrani purporting to hold office after attaining the age of superannuation. Moreover, the question of his competency to hold office came up before us whilst we were hearing the petition and notice was issued to him and he was provided full opportunity to file reply, which he did, engage counsel, which he did, and contest the matter, which too he did. In the case of Hamdullah v. Saifullah Khan the Hon'ble Supreme Court dismissed the appeal preferred against the judgment of the High Court whereby a writ of quo warranto was issued to remove the appellant as a Member of the Balochistan Provincial Assembly. We have not been able to find anything in this judgment that places any restriction upon our ability to hear the matter of Mr. Qambrani. The contention that this court cannot examine the mind of the appointing authority is misplaced; since, government action in re-employing a retired civil servant is to be considered in the light of stipulated criteria, which we shall be doing.
20. That Mr. Qambrani preferred Civil Petition No,1939 of 2012 before we had finally decided his matter, and the Hon'ble Supreme Court vide Order dated 22nd January, 2013 was graciously pleased to direct the Registrar to place the order of the said date before us so that we, "may pronounce the judgment as early as possible." In this Order the Hon'ble Supreme Court was pleased to note that Syed Iftikhar Hussain Gilani, learned senior counsel, had relied upon the cases of Fazl-e-Haq, Accountant-General, West Pakistan v. The State (PLD 1960 SC 295) and Ali Muhammad v. Chief Settlement Commissioner (2001 SCM R 1822); however, neither of these cases were cited before us. Both these judgments state that the High Court cannot exercise suo motu proceedings. Unfortunately, we did not have the benefit of learned counsel's arguments in the context of the said judgments. We however presume the same were relied upon as the notice issued to Mr. Qambrani may have been construed to be a suo motu exercise of powers by this court. If indeed learned senior counsel Syed Iftikhar Hussain Gilani had canvassed this proposition, we are puzzled because in Constitutional Petition No,682 of 2011, wherein on the report of the Registrar of the. High Court about the merciless execution of 26 persons belonging to a particular sect was claimed to have been carried out by a proscribed, organization, we had formulated a question whether the High Court can exercise suo motu powers and the learned senior counsel Syed Iftikhar Hussain Gilani was appointed as one of the amici curiae and he had contended most forcefully that the High Court could exercise suo motu powers. However, as we have not decided the said petition it would not be appropriate to dilate on it further. Be that as it may we proceed to examine the cited cases. The case of Fazl-e-Haq was a case decided in the aftermath of the issuance of the Proclamation and the Laws (Continuance in Force) Order, 1958 and the question of the suspension of a judge and his salary was attended to therein. This over fifty year judgment may be construed to contravene the principle of the independence of the judiciary enshrined in the Constitution of the Islamic Republic of Pakistan, which was unanimously adopted by the people of Pakistan through their directly elected representatives in 1973. The judgment may also not accord with the prevailing Code of Conduct of judges and recent pronouncements of the Hon'ble Supreme Court. The said judgment may therefore not constitute binding precedent. As regards the case of Ali Muhammad v. Chief Settlement Commissioner the Hon'ble Supreme Court had amongst others formulated the question, "Could the High Court itself make order of allotment in exercise of its Constitutional jurisdictions?" The facts of the case were that the High Court had granted relief to parties in an appeal filed by another when they were not parties thereto. The question was answered in the negative by the Hon'ble Supreme Court. We are of the opinion that the said judgment does not prevent us from examining whether Mr. Qambrani could hold office.
21. Mr. Muhammad Aslam Chishti, learned amicus referred to section 14 of the Balochistan Civil Services Act, 1974 and stated that the general rule is that a retired civil servant is not to be re- employed; however, as an exception he may be re-employed if it is necessary in the public interest.
Section 14(1) is reproduced hereunder:--- "14. Employment after retirement.--- (1) A retired civil servant shall not ordinarily be re-employed under the Balochistan Government, unless such re-employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority.
' Provided that, where the appointing authority is the Government such employment may be ordered with the approval of the Government."
' He further stated that the same provision mutatis mutandis is provided in section 14(1) of the Civil Service Act, 1973, and as such the instructions provided in the Estacode are relevant and can be considered. Learned amicus stated that re-employment is permissible under exceptional cases and for two conditions have to .Exist, firstly, that it is 'necessary' and, secondly, that it is 'in the public interest', however, there is nothing on record to show that the re-employment of Mr. Qambrani was either 'necessary' or 'in the public interest' nor it has been so claimed. He also referred to SL No,20 of the Estacode (January, 1989) at page 11, which stipulates four conditions to be complied with before such reemployment. However, in the instant case none of the four conditions are applicable.
In the case of Pakistan v. Abdul Hamid (PLD 1961 SC 105) and Khan Faizullah Khan v. Government of Pakistan (PLD 1974 SC 291) the Hon'ble Supreme Court held that the instructions contained in the Estacode can be construed as a rule. Learned amicus also went through the official summary with regard to Mr. Qambrani's purported re-employment and stated that none of the senior bureaucrats supported Mr. Qambrani's application for re-employment. In this regard learned amicus referred to the notings of the Secretary S&GAD, Secretary Finance and Secretary Law of the Government of Balochistan as well as the Chief Secretary. Mr. Chisti stated that Mr. Qambrani committed a patent illegality by issuing an 'order' in his own favour on 27th October, 2012, and even if for the sake of argument this purported 'order' is accepted the same is not sustainable as it was passed with a view to compensate him for the period "he remained out of active government service." Learned counsel stated that the concept of such 'compensation' is alien to section 14 of the Balochistan Civil Servants Act, 1974 as well as the provisions of the Estacode. Mr. Baz Muhammad Kakar, the other learned amicus adopted the submission made by Mr. Chishti and further stated that the purported 'order', whereby Mr. Qambrani appointed himself as Chairman, was void ab initio, illegal and contravened the noting on the said summary made by Secretary S&GAD, Secretary Finance, Secretary Law as well as the Chief Secretary. He further stated that it appeared that Mr. Qambrani did not act on his own 'order' since a tussle developed between the senior bureaucracy, including the head of the bureaucracy in the Province, and the Chief Minister.
He stated that neither Mr. Qambrani nor the Government has disclosed, when and if at all, he relinquished the post of Chairman BDA and how he managed to secure for himself the position as Member Chief Minister Inspection Team on 1st February, 2012, and no summary with regard to such appointment has been filed. He stated that since the 'order' of reemployment of Mr. Qambrani as Chairman BDA was not withdrawn he could not hold another post. He referred to the notification of Mr. Qambrani's re-employment and appointment as Member Chief Minister Inspection Team which according to him was issued to accommodate him as demonstrated by the notification itself, which states that the appointment is made "against newly created post" and that, "The terms and conditions of his service will be notified later on." However, no notification followed and it was not understandable as to how and in what capacity Mr. Qambrani performed his services and that too, as stated by him, without receiving any remuneration. Mr. Baz Muhammad Kakar concluded his submissions by placing reliance on two judgments of the Hon'ble Supreme Court, respectively Supreme Court Bar Association v. Federation of Pakistan (PLD 2011 SC 273) and Muhammad Riaz Akhtar v. Secretary to Government of Punjab (2011 SCMR 588), where the Supreme Court had taken suo motu notice of the illegal appointments that were becoming the order of the day.
22. Mr. Shai Haq, learned Assistant Advocate-General stated that he did not support the appointment/re-employment of Mr. Qambrani as Chairman BDA, but supported his appointment as Member Chief Minister Inspection Team. He further stated that even though the terms and conditions of his service were not notified they would be those of a grade 20 officer and Mr. Qambrani would be paid his accumulated salary later.
23. Having heard the learned counsel and the learned amici curie and gone through the cited cases and the record we proceed to consider the re-employment/appointment of Mr. Qambrani first as Chairman BDA and then as Member of the Chief Minister's Inspection Team after his retirement from government service and whether the same was in accordance with law and whether this court has jurisdiction to attend to the same. The "Summary for Chief Minister, Subject: Application for Extension/Re-employment" (hereinafter "the Summary") needs consideration in this regard. Mr. Qazi Shahid Pervaiz, Secretary S&GAD, Mr. Dostain Khan Jamaldini, Finance Secretary, Mr. Safdar Hussain, Secretary Law and Mr, Ahmad Bakhsh Lehri, the Chief Secretary did not support the re-employment of Mr. Qambrani. Relevant extracts from the said Summary is reproduced hereunder:--- The Chief Minister Balochistan has desired of S&GAD to put up a Summary on the application submitted by Mr. Saadat Anwar Qambrani, Chairman Balochistan Development Authority (F/A).
2. Mr. Saadat Anwar, Chief Engineer (B-19), Communication and Works Department is presently posted as Chairman, Balochistan Development Authority and is demanding extension/reemployment in service for a period of four years beyond his date of superannuation in lieu of the period for which he remained out of service as a result of dismissal from service on account of disciplinary proceedings. The applicant has admitted in his own application that he was re-instated in service from the date of suspension and as such, his period under question has been counted towards his service leaving no scope for grant of additional four years.
3. But since the issue involves financial implications, therefore, the case is submitted through Finance Department requesting them to add their comments enabling the Chief Minister to take a rational decision in the matter.
(Qazi Shahid Pervez) Secretary S& GAD [signed: 26-11-2010]
4. It is to point out that as per Balochistan Civil Servant Act, 1974, section 14(1) a retired civil servant shall not ordinarily be reemployed by the Balochistan Government, unless such reemployment is necessary in the public interest and is made with the prior approval of the authority next above appointing authority. Provided that, where the appointing authority is the Government, such re- employment may be ordered with the approval of the Government (F/B).
5. Finance Department is of the view that instead of granting extension in service to Mr. Saadat Anwar Superintendent Engineer (B-19) who is currently working as Chairman BDA after the date of superannuation, he can be employed on contract basis in BDA if government policy does so allow and if it is felt necessary that his services are indispensable. Otherwise, as stated at para-2 by S&GAD, the officer has been re- instated w. Of the date of his suspension on disciplinary grounds, therefore, there seems no reasons for grant of extension to him.
(Dostain Khan Jamaldini) Finance Secretary [signed: 10-12-2010]
6. The Law Department is in complete agreement with the views contained in paras 4 and 5 of the summary.
(Safdar Hussain) Secretary Law [signed: 18-12-2010] ' The above was submitted to the Chief. Secretary and in agreement of the above the Secretary signed on 27-12-2010.
24. After about nine months of the above unanimous rejection of Mr. Qambrani's application, the Chief Minister wrote on the Summary as under:---
7. The officer faced illegal interruption in his lawful service. His interrupted period will not count towards service qualifying for, pension. In order to compensate the officer for his illegal broken period, the applicant may be allowed to continue his service for illegal broken period of 4 years over and above of his superannuation in the public interest.
(Nawab Muhammad Aslam Khan Raisani) Chief Minister [signed: 17-9-2011] ' However, the Chief Secretary did not relent and noted as under:---
8. The case was examined, it may be pointed out that, no extension is legally allowed beyond attaining 60 years of age. Even in case of some officers/officials inadvertently continue after 60 years of age, serious problems arise in their pension process. The amount drawn as salary after completion of 60 years of age has to be deducted from the salary of such officials.
9. The Government in certain exceptional cases has been appointing officers on contract after retirement. However, the Supreme Court of Pakistan has recently declared all the appointments against the cadre posts as illegal (except in case of Health Department (against the technical post) and in the Provincial Ombudsman (Mohtasib) Office. There has been no gap in the service of Mr. Saadat Anwar (Chairman BDA) as all his service gaps were regularized and he has been paid for that.
10. However, if the Government wants to utilize his services this can only be done through contract appointment against ex-cadre positions. Mr. Saadat Anwar thus can be appointed against some ex-cadre position in some projects, Public Service Commission, Provincial Ombudsman (Mohtasib) Office etc.
11. Submitted please.
(Ahmad Bakhsh Lehri) Chief Secretary [Signed: II.
10. 2011] The Chief Minister however was determined and wrote:---
12. Due application of mind has not been applied to interpret my orders. Observations raised at Paras 8-10 are not legally tenable. In this particular case no exceptional favour beyond the ambit of rules is being extended. He remained out of service for a certain period due to proceedings which were declared untenable by a competent court of law. Even on his reinstatement from the date of his dismissal he could only be granted salaries for the period but other allied benefits admissible during active service could not be paid to him (vehicle, telephone, etc). What about the suffering he endured during dismissal? Could there be any compensation?
13. The least we could do is to compensate him to allow him to serve for the period he was unlawfully kept out of service. The post of Chairman BDA is governed under the BDA Act, 1974 and government is fully competent to appoint any person against this post. This post has already been declared as ex-cadre post by the Government. It may be utilized for appointment of Mr. Saadat Anwar for the period he holds it an another (B-21) post may be given to the Service Group to which it belongs if need be.
14. While issuing orders for the purpose a condition may be laid down that no pensioner benefits for the period beyond superannuation till he serves shall be admissible to him.
15. My orders at Para 7 being fully within the ambit of rules be implemented in letter and spirit.
(Nawab Muhammad Aslam Khan Raisani) Chief Minister [Signed: 14-10-2011] ' The Chief Secretary did not agree with the Chief Minister and in apparent dejection wrote:-
16. Chairman BDA is the competent authority to act under the BDA Act, 1974.
[Signed: 20-10-2011] ' Mr. Qambrani correctly realized that he could not himself issue orders in his own favour, therefore, he himself wrote the following two paragraphs on the Summary:---
17. Under section 5(3) (Annex-A) of the Balochistan Development Authority Act, 1974, the Government is the appointing authority for the post of Chairman B.D.A., moreover at present the post of Chairman also lies on the strength of S&GAD vide Notification No,S-III-27(176)/2002-S&GAD dated 8th June, 2002 (Annex: B). As the undersigned is holding the charge of Chairman B.D.A., he is not in the position to issue such order. My present orders as Chairman B.D.A. Were also issued by the S&GAD.
18. It is, requested that incompliance the order of Chief Minister at para 1 notification for my appointment may please be issued by the S&GAD.
(Saadat Anwar Qambrani), Chairman [Signed: 22-10-2011] ' The file was then placed before Secretary S&GAD, who wrote:--- "19. The case has been examined. This department is of the view that Chairman Balochistan Development Authority (BDA) may proceed further as per approval of the Worthy Chief Secretary Balochistan at Para-16/ante.
(Bilal Jamali) Secretary S&GAD [Signed: 27-10-2011] "
' However, the Chief Secretary refused to issue orders in favour of Mr. Qambrani and on 27th October, 2011 wrote, "How can I give such an illegal order." This should have concluded the matter, yet again.
25. Mr. Qambrani, however, was not one to relent, and now decided to take the law into his own hands and issued 'order' dated 27th October, 2011 in his own favour (reproduced above in paragraph 5 above). Mr. Ahmad Baksh Lehri, the Chief Secretary who had resisted Mr. Qambrani's re-employment/appointment lost his position soon thereafter but Mr. Qambrani continued in the service of the Province.
26. Mr. Qambrani is on record to have stated that he could not issue an order in his own favour but then went and did so. There is also nothing on record that Mr. Qambrani or anyone else rescinded his own 'order' of re-employment/appointment as Chairman BDA. The appointment of Mr. Qambrani as Chairman BDA, after attaining the age of superannuation, was in complete contravention of the applicable law, i,e, section 14(1) of the Balochistan Civil Services Act, 1974, which provides that "A retired civil servant shall not ordinarily be re-employed under the Balochistan Government, unless such re-employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority." The Summary did not disclose the necessity of re-employing Mr. Qambrani nor stated that it was in the public interest, thus two preconditions stood violated. Moreover, it is clearly stated that, a retired civil servant shall not ordinarily be re-employed, therefore, the burden was clearly on him and/or the Government to show why departure from this direction was made, but no reason in this regard was mentioned, and thus we can conclude that none existed. Moreover, his re-employment as Chairman BDA by himself too contravened the law which stipulated that such appointment could only be made with the prior approval of the authority next above the appointing authority, and not by Mr. Qambrani himself. Therefore, the re-employment/appointment of Mr. Qambrani as Chairman BDA after his superannuation was patently illegal and of no legal effec'[.
27. That On 1st February, 2012 Mr. Qambrani was appointed as Member Chief Minister's Inspection Team, "against newly created post" with "terms and conditions of his service" to "be notified later on," but nothing further was notified. Mr. Qambrani's appointment as Member of the Chief Minister's Inspection Team too violated section 14(1) of the Balochistan Civil Servants Act, 1974 as the two preconditions mentioned therein of such employment being 'necessary' and 'in the public interest' were not fulfilled. The said provision further states that, a retired civil servant shall not ordinarily be re-employed, and nothing was brought on record to show why an exception to the general rule was made. With regard to such re-employment/appointment no summary was brought on record to justify it in terms of section 14(1) or the instructions contained in the Civil Establishment Code (Estacode), the relevant provisions whereof are reproduced hereunder:- II. Re-Employment ' SL. No,20 ' Employment after Retirement - Policy and Procedure---Reemployment after Superannuation, ' It has been noticed that Ministries/Divisions initiate proposals for re-employment of government servants after superannuation as a routine measure. It is emphasized that re-employment beyond superannuation should be an exception and not the rule. It may be recommended only in cases where government considers that the experience gained by the retiring person is of vital importance and can be gainfully utilized; particularly in fields where suitably qualified and experienced persons are not available.
2. For achievement of the objective mentioned above, the present government has framed a policy for re-employment of government servants and cases for re-employment would, in future, be considered in accordance with the following criteria:--- non-availability of suitably qualified or experienced officers to replace the retiring officer;
(ii) the officer is a highly competent person with distinction in his profession/field;
(iii) the re-employment does not cause a promotion block; and
(iv) Retention of the retiring officer, for a specified period, is in the public interest.
' This policy would also apply to government controlled corporations and other autonomous bodies.
3. Proposals for re-employment are required to be accompanied with the following documents/information:-
(a) The proposal duly signed by Secretary or Additional Secretary Incharge of the Ministry concerned to be received in the. Establishment Division 6 months before the officer is due to attain the age of superannuation and has the approval of the Minister Incharge; the steps taken to train the substitute, if any; ACRs with photograph, ICP Chart and Bio-Date on prescribed preform; and
(d) Certificate that the officer is medically fit.
Admittedly, the criteria mentioned in paragraph 2 above was not considered or applied, no proposal was submitted, the Secretary of the concerned Department nor Secretary S&GD signed the proposal, and clauses (a) to (d) of paragraph 3 above not complied with. We can thus safely conclude that the re-employment/ appointment of Mr. Qambrani as a Member of the Chief Minister's Inspection Team after his superannuation was patently illegal and of no legal effect.
28. Mr. Qambrani as Chairman BDA conducted the affairs of BDA without demonstrating any expertise or skill. On the contrary, and as noted above, he violated the applicable laws. Therefore, needless, to state he could not be categorized as "highly competent person with distinction in his profession/field", which was a prerequisite for his reemployment. Three Provincial Secretaries and the Chief Secretary did not support his re-employment but their professional opinion was disregarded. The Rules of Business do not grant the Chief Minister any power to substitute his personal opinion for the professional opinion of the said Secretaries and Chief Secretary in the subject matter. If senior bureaucrats are bulldozed in this manner they loose respect and confidence, become dismayed and dejected, consequently, with adverse consequences for the Province and the people. It is a matter of considerable concern that Mr. Qambrani a retired Grade- 19 Officer had the ear of Chief Minister, and his opinion was preferred over serving and senior bureaucrats.
29. There is another aspect of this matter. The Hon'ble Supreme Court in the case of Muhammad Riaz Akhtar v. Secretary to Government of Punjab (supra) held, that, "We may observe in loud and clear terms that appointments on contract basis are not allowed to be continued in terms of section 14 of the Civil Servants Act, 1973 and the Policy unless the conditions specified therein are satisfied." The Supreme Court had subsequently the case of Supreme Court Bar Association v.
Federation of Pakistan (supra) directed the Federal and all the Provincial .Governments, "to ensure that re-employment or employment on contract basis is not made in violation of the relevant law."
Since Mr. Qambrani's re-employment was in violation of the relevant law he should have been relieved forthwith, but this was not done. Significantly, in the Summary the Chief Secretary specifically mentioned the orders passed by the Hon'ble Supreme Court, but to no effect, and Mr. Qambrani openly flouted the said judgments and considered himself to be above the law.
30. Consequently, we direct BDA and the official respondents to strictly abide by the provisions of the Balochistan Development Authority Act, 1974 and the Balochistan Government Rules of Business, and set aside the re-employment/ appointment of Mr. Qambrani after his attaining the age of superannuation both as Chairman BDA and Member Chief Minister's Inspection Team being illegal and ab initio void. The petition stands disposed in the above terms, but with no order as to costs.
' We record our appreciation for the valuable assistance provided by the learned amici curiae.