' RIAZ AHMAD KHAN; J.---This judgment is directed to dispose of W.P. No, 4606 of 2013.
2. Brief facts of the care are that the petitioner was, appointed as Chairman of the Pakistan Electronic Media. Regulatory Authority, hereinafter called PEMRA, by the then President of Islamic Republic of Pakistan vide, notification dated 26.1.2013. On 1642.2013, the petitioner filed the present writ petition that through Press Report he has come to know that he has been removed from the post and in his place Mr. Tehsin Ali Khan, Executive Member PEMRA, presently respondent No, 3, has been appointed 'as, Chairman PEMRA on look after basis. It was further submitted that neither any show-cause notice was issued to the petitioner nor opportunity of hearing was provided and, even "the order of removal from service. Was not communicated to the petitioner, which reflected the malice on the part of the respondents. Notice we issued to the respondents and regarding C.M. For interim relief, the impugned order, which was in the shape of Pre-Release for Presidency, was suspended. The interim order was challenged before the Hon'ble Supreme Court of Pakistan and during this period, the petitioner filed contempt petition with the prayer that order of this Court has not been implemented. The Hon'ble Supreme Court of Pakistan while seized of the matter, ordered that C.M. For interim relief be decided alongwith contempt petition. On receipt of the case, learned counsel for the parties agreed to argue the main case alongwith the C. Ms: In the meanwhile, respondents Nos. 1 & 3 files comments as well
3. Learned counsel for the petitioner submitted the post of Chairman is a tenure post for four years, as provided in Section 7 of PEMRA Act, 2007. According to Section 7 of the PEMRA Ordinance 2002 as amended by PEMRA Act 2007. The Chairman PEMRA could be removed for misconduct or physical/mental incapacity. The terms misconduct has been explained in Section 7 ibid, which means conviction for any offence involving . Moral turpitude and includes conduct prejudicial to good order or unbecoming of gentleman: According to the learned counsel, the petitioner has not committed the act of misconduct nor was ever accused of conduct prejudicial to good order or even of conduct unbecoming of a gentleman, therefore, the petitioner could not be removed from his service. The learned counsel further submitted that the petitioner had been condemned unheard, opportunity of hearing was not provided to him. The impugned order as such was violative of principle of natural justice and therefore, void. It was further' submitted that after the appointment of petitioner as Chairman PEMRA, the same was challenged by one Mr. Jabbar in a writ o quo warranto and the respondent Ministry of Information and Broadesting had filed comments, wherein it was stated that the summary for the appointment of Chairman PEMRA was processed strictly in accordance with law and rules of business. The appointment was made by the competent authority in accordance with law. Now, the same respondent is taking a different view, because Government has changed and according to wishes of the new rulers; respondent No, 1 is taking a different stance, which is totally illegal. The learned counsel also submitted that the notification dated 16.12.2013 (provided by the learned counsel for respondent No, 1) is totally illegal as on the same date another notification for appointment of respondent No, 3 as Acting Chairman PEMRA was also issued. The notification regarding removal of the petitioner was never sent or provided to the petitioner. According to the learned counsel, the petitioner had not been given treatment in accordance with law and therefore, removal from service of the petitioner, was violative of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973.
4. On the other hand, learned counsel for respondent No 1 submitted that the petitioner had not come to the Court with clean hands, as he has concealed the actual facts. It was further submitted that the petitioner was removed from service on 16.12.2013 and on the same date, the petitioner approached the Court. The impugned notification was not attached with the petition, rather some message and a Press Clipping was attached' by virtue of which no order:could be passed. The learned counsel further submitted that sub-section (1) of :Section 7 .Of PEMRA Act, provided that the Chairman could be removed for misconduct- or due to physical/Mental incapacity.' It Was nowhere provided that the action could be taken after inquiry or issuance of show-cause notice.
Since, the legislature did not provide any inquiry or show-cause notice, therefore, it was not incumbent upon the authority to provide an opportunity of hearing to the petitioner. The impugned order as such was legal and in accordance with law. It was further submitted that in the impugned order of removal, no stigma was attached to the petitioner and therefore. Opportunity of hearing was not required to be provided. The learned counsel further submitted that the appointment of the petitioner was not in accordance with law, that in case of Khawaja Muhammad Asif Versus Federation of Pakistan and others,- reported as 2013 SCM R 1205. The Hon'ble Supreme .Court of Pakistan directed that the appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting . The prescribed procedure to ensure that right persons are appointed on the right job. It was because of the above-said directive of the Hon'ble Supreme Court of Pakistan that the present Government started scrutinizing appointment of the petitioner and during the process, it revealed that the petitioner in the capacity of Secretary Information & Broadcasting Division sent summary fora the appointment of Chairman PEMRA and himself included his own name in the summary' for appointment of Chairman. PEMRA. Since, he himself was Moving the summary so he was not justified to include his own name. In the summary covarison of the qualifications of the candidates was not provided and as such, the summary itself was deficient and not proper: The summary was required to be reprocessed. The appointment of the petitioner was also violative of Section 10(1) of the PEMRA Ordinance, 2002 as the said provision provided that the petitioner was not to be associated with any service after being appointed as Chairman PEMRA. Since. He was from the Civil Service, therefore, he was not eligible to be appointed as Chairman PEMRA. The learned counsel further submitted that neither any advertisement was published nor an open/transparent process was adopted for appointment of Chairman PEMRA. Tne Hon'ble Supreme Court of Pakistan has already held in case reported as PLD 2012 SC 132, that the appointments should be made through an open/transparent selection process. It was held by the llon'bie Supreme Court of Pakistan in Constitution Petitions Nos. 104/2012 and 105/2012 dated 15.1.2013 that position of Chairman PEMRA has to be tilled by a person, who fulfills the exceptional and stringent requirements prescribed in PEMRA Ordinance and not by a casual appointee. The appointment had to be made through an open and transparent process to ensure that the appointee meets the objective criteria specified in the PEMRA Ordinance. The learned counsel submitted that the summary was moved in blatant violation of the direction issued by the Hon'ble Supreme Court of Pakistan, The summary tor appointment of Chairman PEMRA, was required to be moved by the Establishment Division, whereas, in case of the petitioner the same was moved by the Ministry of Information & Broadcasting, which was also illegal. The learned counsel further submitted that after the new Government took over, the appointment of the petitioner was reviewed and a summary was', moved to the Prime Minister showing illegalities committed by the petitioner as Chairman PEMRA and the Prime. Minister after considering the matter, on 13.12.2013 was pleased to advise the President of Islamic Republic of Pakistan to approve the removal of the petitioner from the post of Chairman PEMRA as his appointment was found to be void ab indio. The President was pleased to give his approval on 14.12.2013 and notification was issued on 16.12.2013. Thereafter, through a separate notification, the Executive Member PEMRA. Being 'the only full time member PEMRA was appointed to look after the work of Chairman, till the appointment of regular incumbent.
5. Learned counsel for respondent No, 3 also tiled separate comments; however, the same is ditto copy of the comments tiled by respondent No, L Learned counsel for respondent No, 3 was asked the question that 'since he was representing the newly appointed person Mr. Tehsin Ali Khan, so he was required to justify/establish his position. The learned counsel submitted that he being Officer of the Court, he has to make submissions regarding, removal of the petitioner, from the post of Chairman PEMRA. Learned counsel for respondent No, 3 submitted that the petitioner did not have the qualifications for appointment as Chairman, as those qualifications were provided in Section 6(2) of the PEMRA Ordinance, 2002, which provided that the Chairman of the Authority shall be an eminent professional of known, integrity and competence having substantial experience in media business, management, finance, economics or law. The learned counsel further submitted that the petitioner was no required to include his name in the summary; however, even if it was there, the petitioner was required to attach with the summary proof of his knowledge and experience in the relevant fields as provided in Section 6(2) of the PERMA Ordinance, 2002. By mere attaching Curriculum Vitae the requirement was not fulfilled. Under the law, the C.V. Was required to be scrutinized. Since, no such effort was ever made, therefore, the petitioner tried to mislead the concerned Minister as well as Authority and order of appointment of the petitioner was issued on the basis of misrepresentation mad by, the petitioner. The learned counsel for the petition admitted that in the petition filed by respondent No, 3 again the petitioner, respondent Ministry had filed comment wherein it was submitted that appointment of the petitioner was, in accordance with law and the summary had been properly moved. The learned counsel however, added that in that case an application u/s. 151, CPC had been moved free change of counsel as well as to withdraw those comments a file fresh comments. It was again added that the effort for changing the comments was not on the basis of malice on the part of respondent Ministry, because through this exercise the new Government wanted to bring real facts before the Court. The learned counsel further submitted that Rule 15(2) of 1 Rules of the Business, 1973 provided .That the summary submitted to the Prime Minister shall include a self-contained, council and objective summary stating the relevant facts and the points for decision. It was further submitted that the summary moved by the petitioner for his own appointment was not a self-contained nor complete in all respect and therefore, the order passed by the Prime Minister. On the basis of defective summary was illegal. The learned counsel further submitted that the notification regarding removal of the petitioner from 'the post of Chairman PEMRA was required to be published in the official Gazette and since it was not published in the Gazette, therefore, for all practical purposes the petitioner is still Chairman PEMRA and the writ petition is pre-mature. Learned counsel for the respondents Nos.
1 & 3, in support of their contentions referred to the case-law reported as 2013 SCM R 1205. PLD 2010 Supreme Court 483, PLD 2001 Supreme Court 415 and 2010 SCM R 1301.
6. I have heard learned counsel for the parties and have also perused the record.
7. In case of Khawaja Muhammad Asif Versus Federation of Pakistan and others, reported as 2013 SCM R 1205. The Hon'ble Supreme Court of Pakistan in para 30(e) held that: ' The appointments in autonomous/semiautonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government-by adopting the prescribed procedure to ensure that right, persons are appointed on the right job."
No doubt, this judgment gives power. To the new Government to review the appointments in the autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc, but the ,review must be in accordance with the prescribed procedure.
8. In case of Justice Khurshid Anwar Bhinder and others Versus Federation of Pakistan, reported as PLD 2010 Supreme Court 483, there were in fact review petitions in respect of Constitution petitions, which had already been dismissed. These petitions were regaiding appointment made in Superior Judiciary. In the said case, all the appointments made in the Superior Judiciary were declared to be unconstitutional, void ab initio and of no legal effect. In the said judgment, it was held that:-- "The Court is not bound to follow such rules where there is no apprehension of injustice. It can be said with certainty that the concept of natural justice is flexible and it cannot be rigid because it is the circumstances of each case which determine the question of the applicability of the rules of natural justiceThe rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provision of the relevant act."
' The facts of the afore-mentioned case are totally different and have no nexus with the present case.
9. In case of Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer. Versus Ghulam Nabi and 3 others, reported as PLD 2001 Supreme Court 415, it was held that:-- "High Court not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned. High Court is to see, whether the grant of relief prayed for fosters. The cause of justice or it perpetuates, injustice. Where the Court finds that in a given case though the action taken by the authority is illegal but setting aside of the same would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its Constitutional jurisdiction. Relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains even if for technical reasons impugned be not strictly Justifiable."
' The, facts of this case are also different; however, if it is proved on record that the act of removal of the petitioner was justified and fair though illegal and void and setting aside the same would promote injustice; then in that case relief can be refused, but this is not the case of the respondents.
10. In case of Tariq Aziz-ud-Din and others, reported as 2010 SCM R 1301, it was held that:-- ' It was mandatory under R. 15(2) of Rules of Business, 1973, that a case should be submitted to Prime Minister for his orders based on self-contained, concise and objective summary, stating relevant facts or points for decision.
' In the present case, contention of the respondents is that proper summary was not submitted before the Prime Minister at the time of petitioner's appointment as Chairman PEMRA whereas, there are two different versions of the same department available on the file. In first instance, it was submitted that proper summary was submitted and approval was obtained and thereafter appointment was ordered. In the second comments filed by the respondents in the instant petition, it was stated that the summary was not proper and not in accordance with law.
11. Coming to the facts of the present case admittedly, the petitioner had been appointed for a term of four years as Chairman PEMRA. The notification regarding appointment dated 26.1.2913 was issued under the orders of the then President of the Islamic Republic of Pakistan. It is also admitted that the petitioner was appointed for a term of four years. In this respect the contentions of learned counsel for the respondents are also not clear. On; the one hand, it was submitted that the order of appointment was based on malice and intentionally proper procedure was not adopted. If this argument is accepted, it would mean that the appointing authority had issued the appointment order with mala fide intention. The second contention is that the petitioner himself had prepared summary, which was incomplete and deficient; he himself included his own name in the summary and by misrepresentation of facts got the approval of the Prime Minister and the President. The contentions are self-contradictory in one more respect as well, as on the one hand it is stated that no stigma was attached with the removal of the petitioner and on the other hand it Is stated that the petitioner himself had prepared a deficient summary and had maneuvered his appointment. In other words the petitioner had committed misconduct. Developing this argument, it was further submitted that since a deficient summary was prepared, therefore, the appointment was void ab initio. Even then the question would be as to whether the petitioner could be penalized for the acts of the authority or the Government. If the summary was deficient, the President should not have issued the appointment letter, in any case, the petitioner had a right to be heard and answer the allegations reveled against him. There was no way to remove the petitioner from his post in violation of Section 7 of the PEMRA Ordinance, which provided only for misconduct or physical/mental incapacity, Nobody can be removed from the service on the allegation of misconduct, unless he is confronted with the. Allegations, but in the present case no opportunity of hearing was ever provided to the petitioner.
12. The notification by virtue of which the petitioner was removed from the.Post of Chairman PEMRA, was to the following effect: -- "Islamabad, the 16th December, 2013. NOTIFICATION- ' The President of Pakistan has been pleased to approve the removal of Mr. Rashid Ahmad, from ' the post of Chairman, Pakistan Electronic Media Regulatory Authority (PEMRA), as his appointment being void ab initio."
13. The main question, which requires consideration is as to whether the appointment of petitioner was void ab initio or not. Void ab intio as defined in Black's Law Dictionary means null from the beginning. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void. If on the basis of a void order' subsequent orders have been passed either by the same authority or other authorities, the whole series of such orders, together with the superstructure would fall to the ground. However, in Article 199 of the Constitution of the Islamic Republic of Pakistan the word void has not been used; rather the words used are without lawful authority and of no legal effect.
14. In the present case, there is no doubt about the fact that the President of the Islamic Republic of Pakistan had the authority to pass order regarding appointment of the petitioner. As such, the order of appointment of petitioner cannot be considered as the one without lawful authority. The question, that the authority was not exercised, in the proper manner as the President or the Prime Minister for that matter were not provided with the proper information or the information was , provided by the petitioner himself and thus the Prime Minister or the President was misled are basically allegations. These allegations may be true or may not be true. For this purpose, the basic requirement was that the petitioner should have been provided an opportunity of hearing.
15. In case re: Pakistan International Airlines Corporation (PIAC) through Chairman and others Versus Nasir Jamal Malik and others, reported as 2001 SCM R 934, it was held that where adverse action is being contemplated to be taken against the perion/persons, he/they would have at least right to defend such action.
16. In case re: Muhammad Shoaib and 2 others Versas Government of N.W.F.P. Through the Collector, D.I. Khan and others, reported as 2005 SCM R 85, it was provided that civil servants were appointed in Agriculture Department without any advertisement and test. Civil servants were removed from service, without any show-cause notice on the ground that their appointments were illegal and against the prescribed rules. It was held that the Authorities were bound to issue show- cause notice to the civil servants in that regard. If such notice would have been issued, the civil servants might have come out with the defence that the appointments were not illegal and that the illegality, if at all, had been committed by the department itself for which action the civil servants could not be penalized. Civil servants in circumstances. Were condemned unheard and were made to suffer for the illegality committed by the Government itself Principle of Natural justice and audi alteram partem, was violated and non-issuance of notice could not be ignored unless a fair opportunity of representing their point of view had been given to the civil servants at one stage or the other.
17. In case re: Secretary to 'Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another Versus Sadullah Khan, reported as 1996 SCM R 413, it was held that the departments having itself appointed civil servant on temporary basis in violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointments.
18. In case re: Collector of Customs and Central Excise, Peshawar and 2 others Versus Abdul Waheed and 7 others, reported as 2004 SCM R 303, it was held that if prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority. Competent Authorities should be held responsible and liable for the lapse on their part. The same view was taken in the case of Federation of Pakistan through Secretary, Establishment Division, Islamabad and another Versus Gohar Riaz, reported as 2004 SCMR 1662. Seeking guidance from ail the afore-mentioned judgments, the irresistible conclusion is that the petitioner was entitled to a proper hearing, which was denied to him and therefore, the order of removal was illegal.
19. The contention that the writ petition is not maintainable because there was no order attached with the petition. The petitioner alongwith the writ petition had attached the Press Clipping as well as message issued by the Presidency. It was incumbent upon the respondents that they should have communicated the order of removal to the - petitioner. In this respect one strange argument was made by learned counsel for respondent No, 3, as according to him. The notification was not published in the official Gazette, therefore, there was no order, of removal and the petitioner was still 'Chairman PEMRA. In the same breath the learned counsel submitted that respondent No, 3 had been appointed as Chairman on temporary basis. Obviously, there could not be two Chairmen at one and the same time. If contention of learned counsel for respondent No, 3 is correct, that the petitioner is still Chairman PEMRA, as notification has not been published in the official Gazette, then why respondent No, 3 was appointed as Chairman to look after the affairs.
20. It is also strange that the order of removal was not communicated to the petitioner, but the same had been published in the press. The kplanation of learned counsel for the respondents in this respect is that the press people somehow managed to get it from the Government Offices.
Even if it is true, that would mean that the petitioner had been removed from service prior to 16th December, 2013 i,e, the date of notification; -otherwise, it was not possible for the press to publish the 'same.
21. In the above-said circumstances, I accept this petition. The notification dated 16.12.2013 regarding removal of the petitioner from the post of Chairman PEMRA -is set aside. The petitioner be restored to his post. The notification dated 16.12.2013 .Regarding appointment of respondent No, 3 to look after the affairs, is also set aside. The respondents, however, will have a right to proceed against the petitioner, if they deem proper, provided an opportunity of hearing is provided to the petitioner. -- Writ /Impugned Order Set Aside.