Syed Mansoor Ali Shah, C.J.:- Petitioners have called into question the appointment of Chairman, Water and Power Development Authority ("WAPDA" or "the Authority" ) (Respondent No.3), the handing over of additional charge of the post of Member Water (WAPDA) to Respondent No. 5, that of Member Finance (WAPDA) to Respondent No. 6 and the appointment of Respondent No. 7 as Advisor to W APDA Projects Implementation, W APDA.
2. Learned counsel for the petitioners submits that WAPDA being a statutory authority established under The Pakistan Water and Power Development Authority Act, 1958 ("the Act") is responsible for governing the water and power sectors in the country. He further submits that power to appoint and to determine salary, allowances and other terms and conditions of service of the Chairman and Members, WAPDA rests with the Respondent No.1 by virtue of sections 4 and 5 of the Act, respectively. He argues that respondent No. 1 has been making appointments to key posts of WADPA in an arbitrary, capricious and whimsical manner without any objective criteria and transparency. The petitioners also allege that respondent No. 1 has made appointments of respondent Nos. 4 to 7 to key posts of WAPDA in colorful exercise of power and for extraneous considerations. He adds that these appointments are against the public interest, in as much as, these posts were never advertised, as a result, there was no pool of eligible candidates. He submits that the public at large have been deprived of the best workforce possessing the requisite qualifications, skills and experience which could have been employed against these posts. It has also been submitted that the additional charge of Member Water (WAPDA) and Member Finance (WAPDA) has been handed over to Respondents Nos. 5 and 6, respectively, in violation of the commandments of the Constitution and the law which dispel adhoc appointments to such important posts. It has also been argued that by reason of this blatant illegality all functions carried out by respondents Nos. 5 & 6 as Members Water and Finance (WAPDA), respectively, are of no legal effect and they are also liable to restore the benefits they have derived being on such positions. The petitioners have prayed, inter alia, that the appointments1 of respondent Nos. 4 to 7 be declared to have been made against the Constitutio n and the law and as such void and of no legal ef fect.
3. On the other hand, learned counsel for respondents Nos. 3 & 4 has principally placed reliance on the Act and the Water and Power Development Authority (Chairman & Members) (Conditions of Service) Rules, 1982 ("the Rules") to contend that issuance of public advertisement, establishment of Selection Committee or interviewing by a panel are alien to the Act and/or the Rules. He has further submitted that the appointment of Chairman WAPDA has been made by the Prime Minister (Respondent No.2) while exercising his discretion reasonably and in accordance with the objectives of the Act and the Rules. It has been pointed out that appointment of Chairman WAPDA had been made in accordance with long standing departmental practice which had never been successfully challenged before any Court of law. It has further been contended that the jurisprudence developed by the superior courts mandating public advertisement and other such requirements is not applicable to the appointment of Chairman WAPDA because the said jurisprudence pre-supposes existence of statutory sanction behind such requirements which is not the case with the appointment of Chairman WAPDA. The learned counsel went on to submit that WAPDA is performing functions of the Federal Government which in turn is acting under Section 4 of the Act through its best suited nominee and as such questioning the appointment of Chairman WAPDA tantamounts to interference in the policy domain of Federal Government which is not permissible under the law. He also submitted that the appointment of Chairman WAPDA was made by the Federal Government having regard to the credentials of respondent No. 4 and his deep understanding of the relevant areas needed for this strategically important post.
4. The learned counsel further argued that the petitioners are seeking issuance of writ of quo warranto which is an equitable remedy and as such empowers the Court to look into the conduct of the petitioners. In this context, he pointed out that petitioner No.2 is a habitual complainant and has always tried to hamper the smooth functioning of WAPDA by entangling it and its officers in frivolous litigation and that the object behind filing of the instant petition was just to settle personal score as petitioner No. 2 could not cope with the progressive approach of respondent No. 4.
5. Learned counsel for respondents Nos. 5 to 9 and learned Deputy Attorney General for Pakistan largely adopted the submissions made by the learned counsel for respondents Nos. 3 and 4.
6. I have heard the arguments of the parties and have gone through the law on the subject.
Legislative Scheme
7. The Water and Power Development Authority Act, 1958 (W.P. Act XXXI of 1958) was promulgated on 24 April, 1958. The preamble to the Act signifies that the legislature of nascent State enacted the Act because it was "expedient to provide for the unified and co-ordinated development of the water and power resources of Pakistan".
Section 3 of the Act constitutes WAPDA to carry out the purposes of the Act. Section 3(2) further ordains that WAPDA shall be a body corporate, shall be entitled to acquire, hold and dispose of property , shall have perpetual succession and a common seal and shall be sui juris. Section 4(1) lays down that the Authority shall consist of a Chairman and not more than three Members appointed by the Federal Government while Section 4 (2) of the Act provides that the tenure of the Chairman shall be five years and that of a Member shall be three years. Section 5 empowers the Federal Government to prescribe the salary , allowances and other conditions of service of the Chairman and the Members. Section 6 provides for the mechanisms for removal of Chairman or Members. Section 8 delineates its powers and functions while Section 11, inter alia, ordains that the Authority shall have control over underground water resources and power houses and grids. Sections 17 and 18 make provision for terms and conditions of service of servants and staff of the Authority . Section 22 constitutes a Fund for the Authority and empowers it to utilize the same to meet the charges in connection with its functions under the Act. Section 28 lays down that the accounts of the Authority shall be audited every year by the Auditor General of Pakistan in such manner as may be prescribed by the Government.
WAPDA --An Independent and distinct statutory body
8. The Act reveals that the legislature intended to establish a distinct entity with specialized competence to have progressive and efficient management of water and power resources. This is further re-affirmed from the Statementth of Objects and Reasons of the Act which state as under: "In relation to the needs of its vast areas, West Pakistan has limited resources of water . The effective and rational utilization of the available supplies is, therefore, an imperative economic necessity . To ensure the fullest coordination and the optimum exploitation in the national interest of the water resources of this region such a policy must evidently aim at the development of these resources on a unified and multi-purpose basis. The main elements of multi-purpose development are irrigation, flood control, hydro-electric power generation, navigation, etc. To achieve the most economical results by a power system, it is also essential that hydro and thermal power are properly integrated into one system. For this purpose it has been considered necessary to set up a unitary authority in the form of a statutory body outside the Government Departments. The Authority will have the flexibility and initiative of private enterprise and will be entrusted with sufficient powers to carry out the task entrusted to it.
2. To achieve this purpose the West Pakistan Water and Power Development Authority Ordinance, 1958 was promulgated on 10th February 1958.
3. The Bill seeks to continue the provisions of this Ordinance." (emphasis supplied)
9. The legislature unequivocally established WAPDA as a distinct statutory body outside the fold of a governmental department energized with the flexibility and initiative of a private enterprise. The legislative object of having a unified and coordinated development of water and power resources can only be materialized if the distinctness and independence of WAPDA is kept intact. Perhaps this was the reason which prompted a five member bench of the august Supreme Court of Pakistan to observe: "13. From the above analysis it is seen that although WAPDA's affairs to some extent are controlled by the government but for all practical purposes it is an independent entity and authorized to carry out the business of utilization of water and power resources of the country and to generate electricity and in this connection has been given a freehand. "
10. In addition, modern literature on the subject suggests that corporatization whereby government units are transformed into statutory , semi-autonomous and autonomous corporations, with independent legal status and managerial freedom, is a globally recognized phenomenon. The primary objective of this corporatization is the achievement of operational efficiency by means of creating some distance between government owners and public managers. This distance aims to ease the interference of politicians in managerial decisions and allow for managerial freedom that are different from those found in traditional public administration. Equity , transparency , quality of the workplace, sustainability , solidarity , public ethos and transferabilit y are the normative criteria for evaluation of corporatization in a given setup.
The process of appointment in public sector corporations
11. The preamble to our Constitution places principles of equality of status, of opportunity and social and economic justice to be one of the cornerstones of our governance framework. "[S]o that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity". This prembular resolve is inextricably intertwined with building strong institutions, as weak institutions undermine country?s prospects for growth. Effective, accountable and inclusive institutions can only be conceived if the universal values of openness, fairness, objectivity and transparency are adhered to in selection/appointment processes to the key posts of public institutions. In Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043 ), Ajmal Mian, J. speaking for the Court observed as under:- "17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorit ies, either initial or ad hoc or regular , without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoi ns equality of opportunity and guarantees for creation of an egalitarian society through a new order , which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions."2 3 4 The absence of a palpably transparent and certain process for the appointment of Chairman and Members of WAPDA indubitably mars the effectiveness and independence of such a strategically important public institution.
Therefore, the need for having a process of appointment to these substantial posts which ensures transparency and inclusiveness cannot be overemphasized.
12. From time to time, the superior courts of this country have envisaged the following principles to be kept in mind by the policymakers while envisioning the appointments to public offices: All appointments made to public instituti ons must be based on a process that is palpably and tangibly fair and within the parameters of applicable rules, regulations and bye-laws Syed Mubashir Raza Jaffri and others v.
Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949 ).
There has to be a process which ensure s that the widest possible pool of qualifie d candidates is available to the Government. From this pool, through a transparent selection process, appointments can be made. Randomly entertaining CVs or seeking nominations from arbitrarily selected consultees do not meet the requirement. The requirement can be achieved by open advertisement i.e. inviting applications through Press from all those who are eligible, deserving and desirous or throug h the auspices of talent scouts who have the needed expertise and who can keep the confidentiality Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) and Government of N.W.F.P. through Secretary , Forest Department, Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC 313 ).
Autonomy of Regulators and other Public Bodies is only possible when appointme nts to key positions are made in a demonstrably transparent manner Muhammad Yasin v. Federation of Pakistan through Secretary , Establishment Division, Islamabad and others (PLD 2012 SC 132 ).
The integral link between good governance and a strong and honest bureaucracy can only come about if appointments are based on a clear merit criterion as opposed to favoritism and nepotism Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949 ).
Whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulo usly Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195 ).
Where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured, fair, even, just and reasonable manner and in the public interest and not whimsically or arbitrarily Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195) and Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6).
The Courts are duty bound to judicially review the integrity of the selection process adopted for appointments to public offices to ensure that the requirements of law have been met. However , they will not engage in any exhaustive or full-fledged assessment of the merits of appointee nor would seek to substitute their own opinion for that of the Executive Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) and Muhammad Yasin v. Federation of Pakistan through Secretary , Establishment Division, Islamabad and others (PLD 2012 SC 132 ).
As mentioned earlier , above are the core principles that must be honoured while devising any procedure for appointment to public of fice.
13. In addition to the above core principle s, the appointment procedure in a public sector corporation must have the following eight elements in order to select the best of the best: i. A job analysis leading to a written statement of the duties of the job (the job description) and the competences that the jobholder will need (the competency framework or person specification); ii. An advertisement disseminated to eligible groups, including a summary of the job description; iii. A standard application form; iv. A scoring scheme based on the person specification;5 v. A short-listing procedure to reduce applications, if necessary , to a manageable number; vi. A final selection procedure based, again, on the person specification and including a panel interview; vii. An appointment procedure based on the scoring scheme; and viii. Notification of results to both successful and unsuccessful candidates.
Council of Common Interest
14. Under Article 154 of the Constitution it is the Council of Common Interest (CCI) that is to formulate and regulate policies in relation to matters in Part-II of the Federal Legislative List and to exercise supervision and control over related institutions. WAPDA falls under Entry 3 of Part-II of the Federal Legislative List. Therefore, CCI is to formulate and regulate policies relating to WAPDA and also exercise its supervision and control. The policies relating to recruitment of the Chairman and Members of WAPDA have to be developed in association with the CCI in order to build an institution that is pillared on the Federal Principle. Reliance is placed on Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir, etc. (PLD 2017 Lahore 489).
15. Learned counsel for WAPDA and the learned DAG frankly admitted that such a process must be put in place.
They submit that since 1958, as many as, 22 Chairmen of WAPDA have been appointed by the Federal Government without any structured process, however , they undertake to make all the future appointments to the above posts according the principles laid down in this judgment. Learned Counsel for the Federation and WAPDA submit that they have already started the process in the case of one of the Memb ers, whose term is coming to a close. They undertake to notify an open, structured and transparent process in place so that the next appointments fully meet the requirement of this judgment.
16. In view of the above categorical comm itment on the part of the Federal Govern ment and WAPDA to follow the instant judgment in letter and spirit and considering that this would help actualize the statutory objective of the Act and will be a step forward in the national and public interest, learned counsel for the petitioners submits that he is satisfied with the undertaking given by the Federal Government and WAPDA if future appointments in WAPDA are strictly in the light of this judgment. He, however , reserves his right to approach this court in separate proceedings if he wishes to challenge the appointment of the Chairman and the Members of WAPDA on any other ground than the process of appointment discussed in this judgment.
17. This judgment is based on the consen t of the parties. Federal Government and WAPDA shall ensure that future appointment of Chairman and its Members are strictly in accordance with the principles settled in this judgment and will ensure that the relevant recruitment process is put in place in consultation with CCI within six months from today if not earlier . Before parting with the judgment I wish to acknowledge the wonderful assistance rendered by Judge Mohsin Mumtaz, Research Associate, LHCRC.
18. This petition is allowed in the above terms.
1 Petitioner No. 1, per para No. 9 of the petition, is a practicing advocate and a human rights activist whilst petitioner No. 2 is a serving Superintending Engineer (Civil) in WAPDA.
2 Published in the Gazette of West Pakistan (Extraordinary), dated 26th March, 1958, pp. 411-412 3 Per Muhammad Ather Saeed, J in Central Board of Revenue, Islamabad and another v. WAPDA and another, PLD 2014 S.C 766 4 David A. McDonald, Rethinking Corporatization and Public Services in the Global South?, 2014, Zed Books, London available at URL: https://books.google.com.pk/books?id=luZiDgAAQBAJ&pg=PT132&lpg =PT132&dq=corporatization+government+united+nations&source=bl&ot s=BHAU9fhOg- &sig=YfhgrPQJ28YGmUGFKqnCpj6Ek3I&hl=en&sa=X&ved=0ahUKE wjipffe0JzXAhXnBcAKHeCuBjoQ6AEIMDAC#v=onepage&q=corporati zation%20government%20united%20nations&f=false 5 Unlocking the Human Potential for Public Sector Performance?, World Public Sector Report 2005, Department of Economic and Social Affairs, United Nations, New York, 2005. URL: http://unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN0216 16.pdf6 6 Mr. Nasar Ahmed, DAG, submits that this personal view on the subject is different but as a DAG on instructions he agrees with the principles laid down for recruitment of the Chairman and Members of WAPDA.