IJAZ ANW AR, J:- Through the instant writ petition, the petitioner has placed information before this Court regarding the appointment of respondent No.1 to be violative of law and asked for issuance of a writ of quo warranto with the following prayer:- "It is, therefore, humbly prayed that on acceptance of this writ petition this Hon'ble Court may graciously be pleased to: i.Require respondent NO.1 to show under what authority of law he claims to hold the office of CEO PEDO; ii.Declare that the appointment of respond ent No.1 as CEO of the Organization is illegal, unlawful and without any lawful authority and jurisdiction, as such is liable to be declared as null and void; iii.Set aside the appointment and any actions taken by respondent No.1 as CEO PEDO as void-ab-initio; iv.Grant interim -relief by suspending respondent No.1 from his duties and obligations, till the final disposal of the instant petition. v.Grant any other relief that this honourble Court deems fit and appropriate in the facts and circumstances of the case".
2. The petitioner has introduced himself as an Accountant at the Khyber Pakhtunkhwa Energy Development Organization (PEDO). He narrated the facts that in the year, 1986 in view of the Hydel Power Potential sites located in Northern Districts of Khyber Pakhtunkhwa, the Small Hydel Development Organization
(SYDO) was approved by the Provincial Government, vide Sarhad Hydel Development Organization Act, 1993, the Provincial Assembly promulgated this Act to utilize the huge Hydel potential of the Northern Districts of Khyber Pakhtunkhwa, as per the Act ibid vide Amendment Act of 2014, the Sarhad Hydel Development Organization was renamed as Pakhtunkhwa Energy and Power Development Organization (PEDO). The (PEDO) was to be governed by the Board of Directors with the Chief Minister of this Province as its Chairman. The Act provides for the constitution of the Board and Executive Committees.
According to this Act, the Board and the Executive Committee has its own functions. The Board has to formulate the policies and issued guidelines for implementation while the Executive Committee is responsible for implementation and to exercise financial and administrative powers as assigned to it. The Chief Executive Of ficer is the administrative head of the PEDO.
3. Section 5 (1) provides the criteria for appointment of Chief Executive Officer, which is reproduced as below: "5(1).Government shall appoint the Chief Executive Officer of the Organization from amongst the persons having expertise in the field of energy and power section on such terms and conditions as the Government may determine".
4. It is alleged that initially vide advertisement the post of Chief Executive Officer was advertised providing therein the qualification and experience in accordance with the PEDO Act, which is reproduced:- "Candidates must hold at least Master Degree in Civil/Electrical/Mechanical Engineering/Business Administration or C.A. Must have at least 25 years of post-qualification experience in the organization/companies dealing in Hydel/thermal power generation and power distribution. i.5 years as head/CEO of any Power Project Construction Company/organization and proven track record of achievements. ii.10 years Senior level experience in management of construction of power projects and transmission lines/Grids and distribution of power i.e. Pre-implementation, tendering contract negotiations, award of contract and its implementations under all kinds of funding(Govt./International Donor Agencies). iii. Experience of interacting with NEPRA".
5. It is alleged that again on 18.9.2014 malafidely the post of Chief Executive Officer, PEDO was re advertized giving a completely different criteria, contrary to the Section 5(1) of the PEDO Act, 1993. Relevant para from the advertisement is reproduced:- "Minimum of 15 years of experience in energy , power or Financial sectors with at least 3 years as CEO, MD,COO, CFO or Country Head in corporate entity (i.e.No.1 or 2 in corporate hierarchy) having annual turnover of more than 25 Billion".
6. It is alleged that the respondent No.1 who has the political backing and close links with one Mr.Asad Umar, MNA-48 Islamabad, who is the Member of the Energy Apex Committee of this Province, was appointed in violation of merit and the criteria set in the Act ibid.
7. The respondents were put to notice, they filed their joint comments. Defending and denying any foul play in the matter of appointment of this important office of Chief Executive Officer. They summarized their defence in paras-3 to 5 of the comments, the same is reproduced for convenience:- "Paragraphs 3 to 5 of the petition are refuted being misleading. In fact, when despite abundance of resources, SITYDO kept performing below par and miserably failed in materializing any mega projects, Government was constrained to reexamine and realign its priorities. Feedback from relevant stakeholders and interaction with other federal and provincial counterparts necessitated whole-scale changes in SITYDO. Not only an immediate need was felt to restructure and reorganize this floundering Organization but it was also felt that Province must harness other forms of energy and power besides merely hydro-electricity. This led the Government to bring substantial changes in SITYDO Act, 1993 through Act XIII of 2014, whereby not only the Organization was renamed to PEDO but besides restructuring the Board of PEDO many other important changes were also brought on the statute book. Bedrock and spirit of these statutory amendments were reorganizing this entity on corporate lines. It was also felt that business-as-usual would not bring any desired changes thus to foot the bills of future energy plans, Government has to run this organization through a corporate-sector led, lean Board with minimum government involvement, with a Chief Executive from corporate sector, who is capable of thinking out-of-the-box, who knows to leverage the resources well and has mastery to attract more and more investment through his connectivity and abilities of showcasing projects with potentials to maximize profits for government.
4. Para 6 of the petition needs elaboration. Criterion advertised through advertisement dated 04.04.2014 was prepared prior to promulgation of Act XIII of 2014 and was already in process of publication on 02.04.2014 when the Act received asset of the Governor and was accordingly notified. Criterion had no legal backing or mandate as PEDO Act, 1993 (as amended) does not postulate such cumbersome eligibility. Even otherwise, Board and the HR Committee and of reorganized PEDO was looking for a dynamic and talented individual with demonstrable expertise to run PEDO on corporate lines so that he may take PEDO to pinnacle of success besides coming up with out-of-box solutions to meet the outlay of hundreds of billions to execute the energy plan of the Province, especially when the Provincial coffers are grossly insufficient to meet such sizable fiscal requirements. This led the Board to go for a fresh round of advertisement,. In case of any grievance against Board decision, petitioner or for that matter any of the candidates could have challenged such decision before competent forum.
5. Paragraphs 7 to 9 are vehemently denied being nothing but willful distortion and misstatements. The process of re-advertisement and consequent selection were open, fair and transparent. Respondent No.2, while substantially fulfilling the requirements of amended Section 5 (1) and while keeping in view required skill set for a corporative PEDO sought candidates having required expertise in energy and/or finance. Respondent No.1, who happens to have one of the shiniest profiles and a resplendent profile as corporate guru with sufficient experience of energy and power while working with another affiliate concern of E&P Department and Engro group, known for their energy exploits in Sindh applied for the post of CEO and after going through a long winded and thoroughly scrutinizing process, got recommended for appointment of the Board. The entire process was ensured to meet the highest standards of merits and was kept insulated from strongest of pressures and influences asserted by certain elements to perpetuate vested interest as well as to induct stereotypical incumbents with no corporate skills. Respondent No.2 clearly fulfills the criterion laid down in law.
He was promised market-based salary at the time of hiring as per Board decision, in view of his multi-national exposure and his feats on top management positions both in country and abroad (at Japan, Papau New genie and Singapore). Petitioner has no legal right, character or entitlement to challenge either the appointment or for that matter the salary setting process of the respondent No.2".
8. Learned counsel for the petitioner referred to para 5(1) of Khyber Pakhtunkhwa Energy Development Organization Act, 1993 duly up-dated and amended vide PEDO (Amendment Act, 2014) and contended that this sub-section is the only pre-requisite under the law for appointment against this public post of Chief Executive Officer and the plain reading of this sub-section suggest that expert only in the field of Energy and Power sector would qualify to be appointed as Chief Executive Officer (PEDO). He argued that the authority of the government to appoint the Chief Executive Officer is a structured one and confined within the four corners of law. Learned counsel for the petitioner then referred to the initial advertisement issued on 4.4.2014 and argued that there the qualification and experience mentioned placed emphasis on dealing with Hydel/Thermal Power Generation and Power Distribution but the amended advertisement dated 18.9.2014 introduced a complete different criteria for the appointment of Chief Executive Officer, wherein experience in financial sector was included as a substitute for the experience in energy and power. Learned counsel further argued that the respondents themselves carried out a short-listing process in which the respondent No.1 was placed at Sr. No.5 from amongst the (18) eligible candidates. However, having certain background of affiliation with an NINA and prominent leader of the Ruling Party of the Province, was preferred over the better candidates and appointed him. Learned counsel referred to the bio-data of the respondent No.1, wherein he claimed to have remained as Senior Business Analyst, Finance and Planning of Engro Chemical Pakistan Limited allegedly owned by the said NINA. Learned counsel argued that where the respondent No.1 was appointed in violation of law and was having no lawful authority to hold the post of Chief Executive Officer, the petitioner who is low paid employee of the respondent/organization, is merely placing information before this Court to proceed in the matter. He lastly argued that the appointment of respondent No.1 need to be strucked down to upheld the rule of law.
9. Learned Advocate General referred to the appointment letter of the respondent No.1 dated 18.2.2015 and argued that the Provincial Government is empowered to appoint the Chief Executive Officer of the Pakhtunkhwa Energy Development Organization on contract basis, because section 5 (1) of the PEDO Act, 1993 empowered the Government to appoint on such terms and conditions as it may determined. Learned AG argued that the writ petition is filed for ulterior motives and referred to certain paras of the writ petition to contend that the petitioner's main grievance seems to be apprehending some service risk on the appointment of respondent No.1. He lastly argued that where there is malafide on the part of the petitioner or personal interest, the writ of quo warranto cannot be entertained and placed reliance on 2004 SCMR 1299 and argued that on the touch stone of the judgment of the Apex Court, this writ petition is liable to be dismissed.
10. Mr.Shumail Ahmad Butt, learned counsel representing the respondent No.1 argued that though the main emphasis of qualification is on experience in energy and power sector, but these sectors also include specialized person in financial matters, and therefore, the respondent No.1 having a vast experience in financial matters by referring to his bio-data contended that he fulfilled the criteria for appointment as mentioned in the PEDO Act, 1993. Learned counsel for respondent No.1 argued that despite the fact that this province had the potential of generation of about 4000 MW Electricity but the previous Regime for almost three decades could not even tape up to 100 MW. Learned counsel for respondent No.1 argued that on the appointment of the respondent No.1 a series of projects were initiated and are near completion.
Learned counsel also referred to the CV of respondent No.1 and argued that the petitioner also remained Chief Finance Officer of KP Oil and Gas Company Limited and major financial and industrial concerns of this country. Learned counsel for the respondent No.1 argued that the energy and power cannot be taken in its restrictive sense, he referred to the definition given to the power in sub-section xii of section 2 of the PEDO Act, 1993 whereby "power" includes hydraulic power, electrical, energy, steam, gas, thermal generation, alternative renewable sources of energy. He thus argued that merely a candidate having potential in Hydel cannot run the post and a dynamic candidate having expertise in all fields including power and finance could better run this public office. Learned counsel lastly argued that the Provincial Government has rightly exercised its authority and appointed respondent No.1 in the public interest. He also referred to different averments of the petition and contended that there is extreme malafide on the part of the petitioner in questioning the appointment of respondent No.1, thus the writ petition is not maintainable.
11. Arguments heard and record perused.
12. This petition is filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 sub Article (b) (ii) of Article 199 deal with the writ of quo warranto. No doubt, that the issuance of writ under Article 199 of the constitution are discretionary but it is equally true that under the mandate of Article 199, it is not necessary that a person seeking writ of quo warranto must be aggrieved and no such restriction could be placed when Article 199 allow specifically. The Apex Court of this country held in so many judgments that where a petitioner simply laid information before the High Court regarding illegal appointments, he should not necessarily be aggrieved person. We are fortified in our view by the dictum laid down by the Apex Court in the following cases PLD 1974 SC-228, PLD 1975 SC-244, 1981 SCMR-74, PLD 1989 SC-166, 1998 SCMR-996, 2004 SCMR-1299 and 2007 SC-52.
13. Merely for the reason that the petitioner is an employee of the respondent/organization cannot be considered as his malafide, because the main averments are about the ineligibility of the respondent No.1 violation of law, and appointment of ineligible candidate on the post of Chief Executive Officer, PEDO, thus we only considered this writ petition as an information placed by the petitioner before this Court and held this petition as maintainable.
Now coming to the basic question regarding the eligibility of the respondent No.1 to the post Chief Executive Officer, section 5 (1) of the PEDO Act, 1993 provides that the government shall appoint the Chief Executive Officer of the Organization from amongst the persons having expertise in the field of energy and power sector on such terms and conditions as the government may determine. There are two parts of this section, first; the one deal with the basic eligibility for the post of Chief Executive Officer while the second portion deal with the terms and conditions as may be agreed with the candidate or appointee or set by the government. Section 10 of the Act ibid prescribed the general powers and duties of the organization and framing of schemes. Sub-section (2) of section 10 identifies the schemes on which the PEDO will focus i.e. i- the generation, transmission and distribution of power, ii-the construction, maintenance and preparation of power houses, grids and micro grids, transmission and distribution lines, specially in the remote mountainous areas of the province.
14. Keeping in view the powers and duties of the organization. Section 5 (1) of section 5 considers only those persons eligible who have expertise in the field of energy and power sector. The respondents have admitted that the respondent No.1 was expert in financial matter, the detail of which has been enumerated in his bio-data which was referred by both the parties. We found that the reference of the learned counsel for respondent No.1 to his position as Finance Officer of Khyber Pakhtunkhwa Oil and Gas Company Limited is mis-placed as it suggests that he was posted against the said post in September, 2014 while the advertisement for the Chief Executive Officer PEDO was also published on 18.9.2014. We thus found that the expert on financial matters can never be a substitute for expert in energy and powers both are completely different fields, because section 2 (xii) defines "power" includes hydraulic power, electrical energy, steam, gas, thermal generation, alternative renewable sources of energy". The plain reading of the definition no where suggest to include any financial matter, similar is the case of energy the same is not defined in the PEDO Act, 1993 and where it is not so defined we can conveniently refer to its dictionary meaning given in Concise Oxford English Dictionary 11 Edition it defines energy as (i) the strength and vitality require for sustained activity ii) power derived from physical or chemical resources to provide light and heat or to work machine and iii) the property of matter and radiation which is manifest as a capacity to perform work.
15. We have before us also the record of the appointment process which provides that about (122) candidates applied for the position of Chief Executive Officer PEDO, of which (18) candidates were considered eligible and short-listed. Four candidates were given grand total of 55 marks while the respondent No.1 and remaining 14 candidates were given 52 scores. Interestingly in those short-listed candidates, there are other potential candidates, who have their experience both in energy and power and finances but the respondent No.1 was picked, having only experience in finances and then appointed to this very important post.
16. There is no cavil with the proposition that the Courts cannot assume the role of selection authority to determine the fitness of a candidate to be appointed to a particular post, but here the situation is completely different, the process of appointment to the post of Chief Executive Officer is in violation of merit, and that the basic ineligibility of the respondent No.1, whereby he cannot even be short-listed for the position of Chief Executive Officer. Merely because advertisement was manipulated to bring this candidate within the ambit of eligibility criteria would be of no help to him, where the parent law did not consider him to be eligible. The news reports and other documents placed on file by the petitioner though cannot be substantiated but in the background explained above; wherein ineligible candidate was selected, strengthen this contention that it was for extraneous consideration and political manoeuvring in appointing the respondent No.1 to the post of Chief Executive Officer.
17. In PLD 2011 SC-516, the Apex Court refused leave against the judgment of the High Court, whereby out of turn promotion of an Executive Engineer was strucked down in a writ of quo warranto. In PLD 2010 SC-817, the selection of a candidate to the parliament was strucked down for holding fake degree. In PLD 2016 SC-961, the appointments made in the Islamabad High Court in violation of merit and rules was strucked down by the Apex Court, 2007 SCMR -97 and 1991 SCMR-2234 , the judgments of High Court striking down the appointment of Secretary Pakistan Tobacco Board and Secretary Karachi Joint Water Board which were made in violation of law and rules were maintained.
18. The nutshell of the above discussion is, the notification dated 18.2.2015 regarding the appointment of respondent No.1 as Chief Executive Officer Pakhtunkhwa Energy Development Organization is declared as illegal without lawful authority and is strucked down, and declare the post of Chief Executive Officer Pakistan Energy and Development Organization (PEDO) as vacant and direct the respondent to fill the post of Chief Executive Officer strictly in accordance with law .
19. This petition is allowed in the above terms.th