O SHAUKAT AZIZ SIDDIQUI, J. --- Petitioner invoked the Consitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:- "In the circumstances, it is most respectfully prayed that by accepting this petition the respondents be restrained from taking against adverse action against the petitioner and in case they have already terminated the contract of the petitioner, the same action may be declared illegal, mala fide, ultra vires, without jurisdiction, void ab initio, unlawful and against the provisions of the Constitution and be cancelled as such."
And presented the facts as under:-
2. That the petitioner retired from Pakistan Army in the year 2009, as Major General with meritorious service followed by his appointment as Managing Director Canteen Stores Department of the Pakistan Armed Forces (CSD). Subsequently, vide notification dated 28.11.2011, petitioner was appointed as Managing Director Utility Stores Corporations, for a tenure of two years and petitioner accepted the same assignment of heading the Utility Stores Corporation with a mission to re-invigorate the devastating and mismanaged Corporation. That to the utter surprise of petitioner, a ticker on different T.V. Channels aired on disclosing that a summary has been accepted by Hon'ble caretaker Prime Minister approving pre- mature termination, of the petitioner's contract for 02 years service. Learned counsel for petitioner contended that this act of caretaker Prime Minister fails outside his domain/mandate and totally unconnected with his mandate of holding fair elections, having no interest with duties entrusted to incumbent government . Therefore, the impugned action is liable to be struck down on the ground that according to law, a fixed term contract cannot be curtailed or terminated for any reason whatsoever except in cases of proved misconduct where such misconduct is established as a result of some enquiry associating the incumbent office. That, USC is a Private Limited Company duly registered with the Registrar of the Companies having its Articles of Association. Under Article 109, the petitioner can only be removed from his post in accordance with provisions of Section 202 of the Companies Ordinance, 1984, therefore, any other procedure adopted by the respondents is ultra vires and not sustainable in the eyes of law and the impugned action is also a breach of Articles 10 and 14 of the Constitution of Islamic Republic of Pakistan. Learned counsel for petitioner argued that executive functionaries in the interim set up are not vested with any powers to rake any major decision and they have to look after day to day affairs.
3. Learned counsel for petitioner drew my attention to ESTA CODE, Serial No. 141 which are policy guidelines for contract appointments for the post of Managing Director (BS-21) and put emphasis on clause (iv) and (v) and submitted that due to the so reasons the appointment of petitioner can be termed as in accordance with law.
I have heard the learned counsel for petitioner as well as leaned DAG.
4. This Court asked the learned counsel that if for the sack of arguments, it may be presumed that for Retired Army Officers prescribed criteria and conditions can be waived of then what is the criteria on the basis of which any Army Officer can be picked amongst the Army Officers? To which learned counsel replied that authorities can pick any one for this purpose. I afraid, this contention of the learned counsel is totally besides the organic law i.e. Constitution of the Islamic Republic of Pakistan and dictum laid down by the Hon'ble Supreme Court of Pakistan. Even otherwise policy circulated through establishment division office memorandum "No. 6/2/2000R.3, dated 06.05.2000 is offensive to the Constitutional mandate, principles of natural justice and motivated to avoid appointments on merit and to oblige blue eyed persons such policies are not less than political bribe. Even any statute having any provision offensive to the fundamental rights guaranteed by the Constitution is of no value and affect, what to talk of any policy guidelines. The Constitution of the Pakistan ensures elimination of exploitation and not its promotion. The Army Officer after his retirement cannot be obliged merely on the ground and that he was an Army Officer, as such having any preference over other citizens of Pakistan. All posts of Government owned organizations, corporations, companies and establishment etc. Are required to be filled through competitive, credible, fair, open and transparent process and not on the basis of personal likings or disliking and in violation of the merit. Any Army officer selected through competitive process becomes entitle of appointment with full protection of law. The august Supreme Court through different authoritative pronouncements provided guidelines o the issue, following are being relied:---
(i) Tariq Aziz-u-Din's case reported as 2010 SCM R 1301.
(ii) Amina Turab case, reported as PLD 2013 SC 195.
(iii) Muhammad Yasin's case, reported as PLD 2012 S.C. 132.
(iv) Sh. Riaz-ul-Haq, case in Constitutional Petition No. 53/2007 and Hajj Corruption reported as PLD 2011 S.C. 963.
Another dictum laid down by apex Court in the case of Muhammad A.I, reported as 2012 SCM R 673 is also applicable on the matter in hand. .