' MOHSIN TARKAYANI, J. --- Through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 09.03.2016, whereby services of the petitioner were terminated.
2. Brief, facts giving rise to the filing of the instant petition are that presently petitioner was serving as Director General Power Projects in Alternative Energy Development Board (hereinafter called as AEDB)/respondent No,1. That AEDB was established under AEDB Act, 2010 as an autonomous body for the purpose of implementation of various polices, programmers and projects in the field of Alternative or Renewable Energy Technologies. The services of the petitioner were terminated vide office order No, FIR/AEDB/Consultant/PF-03, dated 09.03.2016 (hereinafter called as impugned order) on the basis of the decision of the Honble Supreme Court of Pakistan vide order dated 13.01.2015, passed in Crl. Petition No, 560/2014 titled as Dr. Mukhtar Ahmed and another Vs. Muhammad Anees Saddozai and another. Initially the petitioner was appointed as Consultant in MP-11 through notification dated 08.09.2007 for period of two years w.e.f 01.06.2006. Subsequent to that petitioner was given charge of Director General vide office order dated 02.09.2013 in order to look after the working of the said post but his services were regularized as DG Alternative Energy Scales (AES-II) by AEDB in its 28th meeting held on 28.10.2013. The petitioner was appointed as Consultant in AEDB in MP-1 scale but an officer in the Prime Minister Secretariat changed the scale to MP-II and the petitioner was appointed in MP-II scale. After the regularization of the petitioner in AEDB, W.P. No, 2819/2013 was filed before this Court by Muhammad Ali against the regularization of the petitioner and during the pendency of the said writ petition another writ petition No, 4394/2013 was filed before this Court by an employee of the AEDB challenging the appointment/regularization of the petitioner. Both the writ petitions were alloyed through consolidated judgment dated 23.06.2014. The said writ petitions were allowed with the following observations:- "In this view of the matter, both the Writ Petitions are allowed and appointment/regularization of Respondent No, 6 (Dr. Basharat Hassan Bashir) is declared as illegal, unlawful, without lawful authority, against the Constitutional mandate, prescribed procedure and applicable law. The respondent Nos. 2 & 3 are directed to hold an inquiry and initiate proceedings against persons responsible for lapse on their part."
3. The petitioner assailed the said consolidated judgment before the learned Division Bench of this Court in I.C.As. No, 424 & 425/2014, in which operation of the impugned judgment dated 23.06.2014 was suspended vide order dated 21.07.2016. The said I.C.As. Are still sub-juice. The termination order of the petitioner was passed on 09.03.2016, therefore, the said I.C.As were sine die adjourned in order to give an opportunity to the petitioner to assail the termination through writ petition.
4. Learned counsel for the petitioner contends that the petitioner is foreign qualified Alternative Energy Specialist having 31 years' experience in the field of Alternative Energy as he is Ph.D. From the University of Newcastle Upon Tyne U.K. That he was invited by Government of Pakistan's "Reversing the Brain Drain Policy" as per HEC's foreign faculty hiring programmed. That the Board has found the petitioner competent and capable enough to handle the portfolio as regular employee of AEDB, therefore, prior position of the petitioner become completely immaterial and irrelevant. That the legislature in section 12 of the Act made its intention clearly known by leaving it to the discretion of the Board to appoint officers, experts and consultants as it may deem appropriate and there was no restriction upon the Board. That judgment passed by Hon'ble Supreme Court is not binding on AEDB/respondent No,
1. That the judgment of Humble Supreme Court could not have been given retrospective effect particularly when the petitioner was neither party to the petition nor any notice was given to him. That in the matters of appointment, the procedure prescribed in the Acts/Ordinances must be adhered to and the appointment of petitioner was made under the AEDB Act, 2010. That services of an individual can be terminated on the ground of misconduct, etc after giving opportunity of hearing, however, no such allegation with regard to performance of the petitioner has been levelled in the impugned order. At last learned counsel for the petitioner contends that Article 9 of the Constitution of Pakistan provides guarantee to the dignity to life, right to livelihood and right to work honourably. Learned counsel for the petitioner has relied upon 1996 SCMR 1350, 2015 SCMR 1418, 2006 SCMR 1163, PLD 2015 SC 6, PLD 1987 SC 145, 2013 PLC (C.S) 289, 2013 SCMR 225, PLD 2013 SC 829, PLD 1965 SC 90 & 2011 PLC (C.S) 709.
5. Conversely, learned counsel for respondent No, 1/AEDB defended the impugned order dated 09.03.2016 and contended that AEDB is an autonomous body under the Act and CEO of the Board is appointed by Federal Government and Employees Service Regulations of AEDB are non-statutory U/s 9 of the Act. That the instant writ petition is not maintainable as the petitioner is attempting to perpetuate an illegality by invoking Constitutional jurisdiction of this Court, which is not permissible.
In this regard learned counsel for respondent No, 1 has relied upon PLD 1991 SC 691. Learned counsel for respondent No, 1 further contends that the petitioner has not approached this Court with clean hands and mis-stated the facts, therefore, he is not entitled to any discretionary relief. That petitioner joined AEDB as Member of the Board in 2006 and his appointment/ regularization has already been declared as illegal in terms of consolidated judgment by this Court in W.P Nos. 2819 & 4394/13 and at present I.C.As. Are pending against that judgment. Learned counsel for respondent No,1 further contended that services of the petitioner were terminated by the Board through impugned order dated 09.03.2016 in view of the judgment of Hon'ble Supreme Court in Crl. Petition No, 560/2014, wherein it was authoritatively declared that by very nature of the posts the holders .Thereof are not entitled ambit of the relevant statue and their status is of statutory regulations."
(underlining and emphasizing is mine)
10. From the perusal of the record, it is evident that the petitioner was appointed as Member from private sector in AEDB vide Establishment Division Notification No, 1/34/2005-E-6, dated 04.01.2006 and on the recommendations of the Finance Ministry vide summary dated 23.02.2007 the petitioner was appointed full time Technical Member in the AEDB with salary and perquisites equivalent to MP-II scale w,e,f, 04.01.2006. However, it has been observed that selection of professionals in MP scale is made by a high level selection committee in the light of Establishment Division O.M. No, 1(72)/2002-E-6, dated 11.04.2000 and there is no proof that the petitioner was selected through the said prescribed procedure. Moreover, the requirements of open competition after advertising the post have also not been fulfilled. On the directions of Prime Minister's Secretariat case of the petitioner was re-submitted by AEDB after reconsideration and the petitioner was appointed as Consultant in AEDB in MP-II Scale for a period of two years w,e,f, 01.06.2006. It has also been observed that some cases of MP scales officers, whose contracts had been expired, were submitted to the Ministry for extension of contracts were discussed but the case of the petitioner was not referred for the said purpose as the contract of the petitioner was valid at that time. It has also been observed that two years contract period was expired on 31.05.2008 and the case for extension of the contract of the petitioner was submitted to the Ministry, which was regretted but the petitioner continued his service and the irregularity was subsequently noted during the Special Audit Report of AEDB for FY 2007-08. The Ministry submitted a summary to the Prime Minister for regularization of irregularities but after expiry of contract of Consultant MP-II scale, petitioner was not given extension by the competent authority. It has also been noted that the petitioner was given additional charge of CEO, AEDB vide notification dated 11.6.2013, which was challenged in W.P No, 2819/2013 before this Court, whereby the initial appointment of petitioner as Consultant as well as additional charge of CEO, AEDB was assailed. In that writ Petition, respondent/AEDB defended the appointment of the petitioner by filing para-wise comments in his favour, however, in view of this back ground the case of the petitioner was placed on the Agenda of AEDB for regularization of service in 28th meeting dated 21.11.2013, whereby the Board had regularized the services of the petitioner as DG in ES-II, AEDB vide office order dated 03.12.2013. After the regularization of the service of the petitioner, Suleman Ishaque Malik, Deputy Director (Bio Energy)(AEDB) filed a writ petition No, 4394/2013 before this Court, which was accepted through consolidated judgment dated 23.06.2014.
11. Hence, from the background of appointment and regularization details, it is manifestly clear that the petitioner was appointed in MP-II Scale as Consultant, whereas in the MP Scales, service could not be regularized due to their special status as held by Hon'ble Supreme Court of Pakistan in Criminal Petition No, 560 of 2014 titled "Dr. Mukhtar Ahmed and another vs. Muhammad Anees Saddozai and another" in which it was held that:- "On merits also the respondents have no case. They were appointed on MP Scales. These are special posts with the special package and were created so as to attract professionals from the market who otherwise would not be willing to serve on the regular scales prescribed for the civil services. Those appointed on MP Scales posts are employed for a particular period which may be extended from time to time by the competent authority. By very nature of the posts the holders thereof are not entitled to be regularized or that-the holders of the posts be made permanent to hold the same until they reach superannuation. Even the policy of 25.01.2011 is not applicable to MP Scales Posts. The 3rd paragraph of the policy, reproduced above, refers to cases of contract employees of BPS-i6 and above. These therefore refer to the regular government scales whereas the MP Scale is not a scale above BPS-16 and does not fall within the hierarchy. From this point of view too the respondents were not entitled to regularization of their posts under the said policy.
Seen from any angle the High Court had erred in passing orders on the applications for Contempt of Court filed by the respondents. We therefore Convert this petition into appeal, allow the same by setting aside the orders dated 24.09.2014 and 10.03.2014 and consequently dismiss the very Criminal Original No, 330 of 2013 filed in the High Court. The petition was disposed of by short order in the following terms: "For reasons to be recorded later, this petition is converted into appeal and allowed. The order dated 31.12.2012 in Writ Petition No, 963 of 2012 (Muhammad Anees Saddozat etc. Vs. Federation of Pakistan, etc.) is set aside and so also all orders subsequently passed from time to time.
' However in view of the aforesaid discussion the said , order need to be rectified in that the judgment in Writ Petition No, 963 of 2012 was not impugned before us and therefore the same same does not stand set aside.
' Vertheless reasons at bre-stated the said V judgme his nolonger implementable
12. From the proposal of judgment of Humble ,Supreme Court of Pakistan safely be concluded that _; ' persons appointed on\-MP case are declared as persons appointed against Special Posts with special package, which were created to attract the professionals from market, who are not willing to serve against regular Pay Scales in terms of civil service, therefore, their cases could not be regularized except extension from time to time by the competent authority but moot point in the instant case is as to whether the Board under AEDB Act, 2010 could regularize the services of the petitioner and the regularization dated 28.10.2013 in 28th Board meeting could be made under the law and whether the judgment of Hon'ble Supreme Court of Pakistan will decide the fate of the petitioner or not?
13. In view of the judgment of the Humble Supreme Court of Pakistan, I am of the view that the petitioner was initially appointed in MP Scale on contract basis, however, both the petitioner as well as respondent No, 1 have failed to produce any employment contract, even respondent conferred the status on the day of regularization in 28th Board meeting held on 28.10.2013, the petitioner does not hold any valid contract, through which tie can substantiate his contractual employment but at the same time conduct of respondent No, 1 is highly objectionable which had allowed the petitioner to continue the service till the 28th Board Meeting on one pretext or the other on some political motivation but at the same time learned counsel for petitioner has drawn attention of this Court towards the provisions of sections 3, 4 Chapter-3 of the regulations, wherein different categories of the employees of AEDB can be appointed, transferred and dealt with by the authority referred therein; At serial No, 5 post in AES-10 & 11, the appointing authority is AEDB Board. Learned counsel for the petitioner has also drawn the attention of this Court towards section 17.2 Chapter-17 Termination and Resignation from Service, in which procedure of termination of an employee is mentioned. However, in the instant case, situation is altogether different as the petitioner was terminated vide order dated 9th March, 2016 and the said order is based upon the Judgment passed- by Hon'ble Supreme Court of Pakistan in Crl. Petition No, 560 of 2014. Learned counsel for the petitioner has argued that after regularization of the petitioner, the matter has become a past and closed transaction which could not have been reopened on a flimsy ground like the one mentioned in the impugned order.
14. In order to reach at a just and fair conclusion, the circumstances as well as the criteria through which the petitioner's services were regularized in AES-11 are required to taken into consideration. In order to understand the controversy in its true perspective the criteria, which was adopted for regularization of the petitioner's service requires deeper appreciation. The case of the petitioner was considered in 28th Board Meeting of AEDB through Agenda Item No, 5, which is reproduced below:-- Determination of Services of Dr. Bashart Hasan Bashir ' The Board was apprised that Dr. Basharat Hassan Bashir was appointed in AEDB as Consultant, MP-II scale by the Prime Minister vide notification dated 0809-2007 and was later on temporarily adjusted in AES-10 as per the decision of the Board in the emergent Board Meeting held on 28th November, 2007. The Board was further requested to consider a decision regarding his services in AEDB.
Decision: ' Board approved regularization of services of Dr. Basharat Hassan Bashir in AES-11."
15. Above-mentioned background referred in the Board Meeting and its decision of regularization of petitioner's services is based upon the previous working of petitioner in MP-II scale, which was sole prerogative of Prime Minister, therefore, it is manifestly clear that the