MIRZA VIQAS RAUF, J. Through instant petition, the petitioner challenges the appointment of respondent No.5, namely Dr. Akhtar Nawaz Ghanjera, being the Director General of Pakistan Sports Board, Pakistan Sports Complex, Islamabad claiming that his appointment has been made in violation of law. As per averments contained in the petition, the respondent No.5 was appointed as Director General Pakistan Sports Board by the Federal Government vide its notification dated 15th of April, 2014.
2. While entertaining the instant petition, the respondents were directed to file their reply and parawise comments which were accordingly submitted and are now available on record.
3. Learned counsel for the petitioner submitted that Pakistan Sports Board was established under Section 3 of The Sports (Development and Control) Ordinance, 1962 and in pursuant thereof, the Federal Government has made the Pakistan Sports Board Rules, 1981. He maintained that the composition of the Board is provided in Rule 3 of the said rules and the Director General Pakistan Sports Board is one of the member of the same. Learned counsel further submitted that in order to carry out the objects of the Ordinance, the Pakistan Sports Board made the Pakistan Sports Board Service Rules, 2000 for the purpose of appointment of officers and staff and for regulating the terms and conditions of their service. In order to substantiate his arguments, learned counsel for the petitioner has drawn the attention of this Court to Rule 8 & 9 of the said Rules in order to submit that the Director General can only be appointed by the Federal Government in terms of Rule 9(i)(c)
(a) of The Pakistan Sports Board Service Rules 2000. Learned counsel submitted that the respondent No.5 was an employee of the Sports Board in BS-19 and he did not fulfill the criteria for appointment as Director General for Pakistan Sports Board. Learned counsel contended that for the purpose of justifying illegal appointment, the respondent No.5 was first designated as Director General Tech and thereafter he was appointed as Director General Pakistan Sports Board which is not permissible under the law. It is argued that the appointment of the respondent No.5 was even made without any advertisement as required under the rules. Learned counsel contended that the respondent No.5 is holding the office without any lawful authority. He also referred Section 9 as well as 10 of The Civil Servants Act, 1973. In support of his contentions, learned counsel placed reliance on "GOVERNMENT OF N.W.F.P. through Secretary, Forest Department, Peshawar and others versus MUHAMMAD TUFAIL KHAN" (PLD 2004 Supreme Court 313), "Barrister SARDAR MUHAMMAD versus FEDERATION OF PAKISTAN and others" (PLD 2013 Lahore 343) and "TARIQ AZIZ-UD-DIN and others: in re Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P & 14306-G to 143309-G of 2009, decided on 28th April, 2010" (2010 SCMR 1301).
4. Conversely, learned counsel appearing on behalf of the respondents No.3 to 5, while refuting the arguments of learned counsel for the petitioner submitted that the instant petition is filed with ulterior motives, as the petitioner is affiliated with the opposite group of the respondent No.5. He maintained that the petition is not maintainable on this score alone. In support of his contentions, learned counsel for the respondents placed reliance on "Qazi SHAMSUR REHMAN and another versus Mst. CHAMAN DASTA and others" (2004 SCMR 1299). Learned counsel further contended that the appointment of respondent No.5 was made by a competent authority strictly in accordance with law. He added that the respondent No.5 was promoted in BS-19 in the year 1997 whereafter the Central Selection Boar considered his name for appointment in BS-20 and he was accordingly promoted in the said scale in the year 2011. Learned counsel submitted that the respondent No.5 was initially appointed as Director General Pakistan Sports Board due to the occurring of vacancy on the event of death of previous Director General. Learned counsel argued that the appointment can be made by three modes i.e. firstly by direct, second by promotion and thirdly by transfer and the respondent No.5 was appointed by way of third mode. Learned counsel relied upon "Dr. AZIM- UR-REHMAN KHAN MEO versus GOVERNMENT OF SINDH and another" (2004 SCMR 1299) and "SHAHZADO LANGAH versus FEDERATION OF PAKISTAN and others" (2014 PLC (C.S) 853).
5. In addition to these submissions, learned Deputy Attorney General appearing on behalf of the respondents No.1 & 2 adopted the arguments advanced by learned counsel for the respondents No.3 to 5 with only additional submission that the respondent No.5 was the only person having the qualification to be appointed as such.
6. I have heard the learned counsel for the parties and perused the record.
7. Before touching the merits of the case I would like to dilate upon the issue of maintainability of the petition, raised by the respondents on the basis that the instant petition is the outcome of motivation and it is generated by the rival group of the respondent No.5. It is observed that the respondent No.5, though has taken this preliminary objection in his comments but he has failed to substantiate the same through cogent and substantive material. The petitioner is a citizen of Pakistan and is related to sports. The proceedings in the instant petition are of quo warranto which are not strictly adversarial in nature and it is also not necessary that the person seeking writ of quo warranto must be aggrieved, so the question of locus standi of a petitioner is immaterial. Since the proceedings in the writ of quo warranto are inquisitorial so anybody can move for the same and it is upto the judicial conscious of the Court to see as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973. The said article is meant to control the exercise of unbridled powers by the executive for making appointments to public offices against the law and also to protect a citizen from being deprived of a public office to which he had a right. In terms of Article 199(1)(b)(ii) of The Constitution of The Islamic Republic of Pakistan, 1973, it is within the judicial domain of the Court to call upon the holder of any public office to show as to by what right he is holding the said office if there is some dispute with regard to his competency to hold such office on the basis of lack of transparency, favoritism, nepotism or personal whims of the executive. The respondent has failed to bring on record any disqualification of the petitioner to file the instant petition. Thus the same is competent and proceedable in all respects.
8. While adverting to the merits of the case, in order to determine the fate of instant petition, it would be advantageous to have a glance on the relevant provisions governing the appointment of Director General Pakistan Sports Board. In order to appreciate the contentions of both the sides, it would be apt to have a reference to the basic statue regulating the development and control of sports in Pakistan. For the said purpose, The Sports (Development and Control) Ordinance No.XVI of 1962 was promulgated. Section 2 of the said Ordinance defines the board as constituted for the control of sports in Pakistan under the Ordinance whereas Section 3 relates to the establishment of the "Board". By virtue of Section 5 of the Ordinance ibid, a "Board" is delegated with the powers to make rules and regulations for carrying the object of the Ordinance. The Federal Government in exercise of powers conferred under Sections 3 & 4 of The Sports (Development and Control)
Ordinance, 1962 constituted a "Board" for the control of sports excluding cricket to be called as The Pakistan Sports Board and for the purpose of determining the constitution, powers and functions of The Pakistan Sports Board, The Pakistan Sports Board Rules, 1981 were promulgated on 16th of March, 1981 through S.R.O.222(1)/81 (hereinafter referred as The Rules, 1981). By virtue of Rule 3, the composition of the "Board" was determined which is as under :- "3. Composition of the Board.- The Board shall consist of the following, namely:- {{DATA UNARRANGED}} (i). Minister-in-Charge of the administrative Ministry; (ii). Minister of State of the administrative Ministry; (iii). Secretary of the administrative Ministry; (iv). Secretary, Ministry of Interior; (v). Secretary, Ministry of Capital Administration and Development; President Senior Vice President Vice President Member Member Member (vi). Secretary, Ministry of Member Information and Broadcasting; (vii). Joint Secretary of the administrative Ministry; (viii). Financial Advisor of the administrative Ministry; (ix). Director General, Pakistan Sports Board; (x). Legal Advisor of the Pakistan Sports Board; (xi). Chairman, Capital Development Authority; (xii). Concerned Ministry of each Province, Azad Jammu and Kashmir and Gilgit-Baltistan; (xiii). Concerned Secretary of each Province, Azad Jammu and Kashmir and Gilgit Baltistan and Director Sports Federally Administered Tribal Areas; (xiv). President or the Secretary General of thirty nine National Sports Federations and Associations to be nominated by the president of the board; (xv). Nominees not below the rank of director of three Departmental Sports Bodies, affiliated with the Board; (xvi). Managing Director, Pakistan International Airlines Corporation: (xvii). Chairman, Water and Power Development Authority; (xviii). President, National Bank of Pakistan (xix). Three female members except in the field of sports to be nominated by the President of the Board; (xx). President of Pakistan Olympic Association (xxi). Member, International Olympic Committee in Pakistan;.
(xxii). Eight Veteran sportspersons including five athletes, one coach, one Judge or Umpire and a sports expert to be nominated by the President of the Board". Member {{DATA UNARRANGED}} Clause (ix) of the above rule shows that the Director General Pakistan Sports Board is one of the member of the "Board".
9. In furtherance of above, The Pakistan Sports Board in order to regulate the terms and conditions of the services of the officers and staff made The Pakistan Sports Board Service Rules, 2000 (hereinafter referred as The Services Rules, 2000). The said rules were incorporated in exercise of power conferred by Section 5 of The Pakistan Sports (Development and Control) Ordinance, 1962 and Rule 4 of The Rules, 1981. Rule 4 (ii) of The Service Rules, 2000 provides the definition of Board, whereas the Prime Minister of Pakistan is the Patron-in-Chief in terms of Rule 4 (iii) of The Service Rules, 2000. The Director General is defined in Rule 4(vii) as under:- "vii. "Director General" means the Director General of the Pakistan Sports Board appointed as such by the Federal Government."
10. Rule 8 of The Service Rules, 2000 prescribes various grades and for grade 20, the appointing authority is the Federal Government whereas the Rule 9 provides the mode of recruitments and appointments and for the case in hand sub-clause(i)(c) of the Rule 9 is relevant which is re- produced below:- "9. RECRUITMENTS AND APPOINTMENTS:
(i) EMPLOYMENT POLICY a) b) c) METHOD OF APPOINTMENT The following rules will be followed while making recruitment/promotion to posts in BPS-1 and above in the Pakistan Sports Board:-
(a) Director General - This post will be filled by the Federal Government.
(b) Other posts will be filled as mentioned below against each post:-
11. Sub-clause (K) of Rule 9 dictates that the post reserved for direct recruitment under the rules shall be filled in on the recommendations of the selection committees. Direct recruitment shall be made from the market only after necessary advertisement of post, professional test and interviews.
As per rules, the qualification and experience for appointment as Director General is left upon the decision of the appointing authority. The respondent No.5 was an employee of Sports Board in BS- 19 and he was posted as Director General (Tech)/TRG/BS-20 on 23rd of May, 2011 on current charge basis till finalization of the promotion process. The rules do not provide any such post and this post is alien to the post mentioned in The Service Rules, 2000. The Board is though vested with the authority to introduce amendments by virtue of Rule 172 of The Service Rules, 2000 but no such amendment was ever brought as per mandate of Rule 172. The notification of appointment of the respondent No.5 as Director General Pakistan Sports Board was issued on 15th of April, 2014 and before that he was officiating as Director General Pakistan Sports Board on acting charge basis in terms of office order dated 13.02.2014. Though learned counsel for the respondent No.5 has tried to make his case that the appointment as Director General Pakistan Sports Board was made by way of transfer but no such mechanism is available in The Service Rules, 2000 neither the respondent No.5 can act as Director General (Tech). Under The Service Rules, 2000. It was incumbent upon the Federal Government to fill the post of Director General Pakistan Sports Board by way of direct recruitment through publicity and advertisement in order to bring harmony and transparency in the matter of appointment to a public office of such a higher pedestal. The respondent No.5 was inducted as Director General Pakistan Sports Board without due process of law and in a non- transparent and collusive manner. In somewhat similar proposition in the case of "MUHAMMAD YASIN versus FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others" (PLD 2012 Supreme Court 132) The Honourable Supreme Court of Pakistan has laid down certain parameters to test the validity of appointment process which is as under :- "36. To test the validity of the appointment process in this case, it would be useful to adopt a test based on the following considerations:
(a) whether an objective selection procedure was prescribed;
(b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e. selection of the sort of candidate envisaged in section 3 of the Ordinance;
(c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law."
12. Even this Court while determining the question of appointment of the Chairman of Pakistan Telecommunication Authority in the case of "Barrister SARDAR MUHAMMAD versus FEDERATION OF PAKISTAN and others" (PLD 2013 Lahore 343) has reiterated the principles laid down by the Honourable Supreme Court of Pakistan from time to time in order to streamline the process of appointment to the public offices. The relevant extract from the judgment is reproduced below :- "35. The participatory recruitment process, through open public advertisement, to fill public sector posts has been time and again mandated by the Supreme Court of Pakistan. Reliance is also placed with advantage on Munawar khan v. Niaz Muhammad and 7 others (1993 SCMR 1287), Abdul Jabbar Memon and others (Human Rights Case) (1996 SCMR 1349), Government of N.W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC 313), Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043), Obaid Ullah and another v. Habib ullah and others (PLD 1997 SC 835) and Abdur Rashid v. Riaz ud Din and others (1995 SCMR 999).
36. In the past and even recently the two sitting Members were appointed according to the above open participatory process but, strangely enough, there was no public advertisement prior to appointing respondent No.5. The requirement to reach out to the public (through public notice or advertisement) before filling public posts is an essential obligation of trusteeship to be exercised by the executive. A workable democracy must be pillared in an unwavering commitment to rule of law and due process with the vision to develop inclusive and participatory institutions, which form the bedrock and engines of growth of any progressive nation. Recruitment to a "public office" orchestrated behind closed-doors, driven by agreed of nepotism, without open public participation is undemocratic and deeply injures the constitutional objectives of political, social and economic justice. It also fractures the ownership of an ordinary person in the government and gradually erodes their confidence in the State.
Selection without drawing up profile of the third Member."
13. Reliance of the learned counsel for the respondent No.5 on Rule 10 of The Civil Servants Act, 1973 is of no avail to him, as the same has no nexus with the issue in hand. The appointment of the respondent No.5 as Director General Pakistan Sports Board on one hand offends the right of equality provided under Article 25 of The Constitution of The Islamic Republic of Pakistan, 1973 and on the other abrogates the principles enshrined in Article 27 of The Constitution of The Islamic Republic of Pakistan, 1973. The appointment to such post can only be made after a proper advertisement and after inviting the applications from eligible candidates by holding a selection through a Board or committee of experts, especially constituted for the said purpose. The tendency of the State machinery adopting the course of favoritism and nepotism in the appointment of holder of public offices will ultimately result into complete failure of the organs of the State and the Courts are duty bound to curb this tendency with the mandate of Constitution.
14. As a sequel of above discussion, this Court is of the considered view that the appointment of the respondent No.5 namely Dr. Akhtar Nawaz Ganjera as Director General Pakistan Sports Board was in violation of law and public interest.
15. As a sequel thereof, the instant petition is allowed and the appointment of the respondent No.5 is declared as without lawful authority as a result thereof notification No.1/58/2008 E-6 dated 15th of April, 2014 is set aside. The post of the Director General Pakistan Sports Board is hereby declared to be vacant which shall be filled by the competent authority in accordance with law.