SHAHID KARIM, J.--- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks a declaration that the notification ("the impugned notification") dated 11.11.2015 issued by the Establishment Division, Government of Pakistan be declared as without lawful authority and of no legal effect. By the impugned notification the respondent No,4 was appointed as Chairman of the Pakistan Electronic Media Regulatory Authority (PEMRA) in terms of section 7(1) of the PEMRA (Amendment) Act, 2007. The impugned notification is reproduced as under:--- "With the approval of the Competent Authority, Mr. Absar Alam, is appointed as Chairman, Pakistan Electronic. Media Regulatory Authority (PEMRA) under Ministry of Information, Broadcasting and National Heritage, in terms of Section 7(1) of PEMRA (Amendment) Act, 2007, with immediate effect and until further orders.
2. The terms and conditions of his appointment shall be settled separately, in terms of section 9 of PEMRA (Amendment) Act, 2007."
2. At a later stage on April 8, 2016, the remuneration and terms and conditions of appointment of Absar Alam as Chairman PEMRA were notified. According to this document issued by the Ministry of Information, Broadcasting and National Heritage, the competent authority had approved a remuneration of Rs,15,00,000/- (net of taxes) for Absar Alam as the Chairman PEMRA and his period of contract was for four years tenure in terms of section 7 of PEMRA (Amendment) Act, 2007.
3. The process commenced with an advertisement published in the newspapers of 23.7.2014. The salient features of the said advertisement with regard to eligibility and selection procedure were to the effect that:- "Eligibility a. The Prospective candidates should have the following qualification and experience b. An eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law in accordance with section 6(2) of the PEMRA Ordinance, -2002 as amended by the PEMRA Amendment Act, -2007. c. MA/MSc/MBA/LLB/LLM from HEC recognized university in Pakistan OR abroad at least in 2nd Division. Degree shall be verified from HEC. d. Age between 50 to less than 65 years. e. Written evidence of 15 years experience in organization of governance, management, administration, financial management, media management and marketing. f. Government Servant meeting the eligibility criteria may also apply.
"Selection procedure: The selected of candidate will be made as per procedure and guidelines contained in relevant order/ judgments of the superior judiciary."
4. However, the appointments were not made in pursuance of the advertisement referred to above and a fresh advertisement was publicized through various national dailies on 24.8.2015. The intention, according to the reply filed by the respondent No,2, was to ensure sufficient publicity in order to meet and adhere to the requirements of section 6(2) of the PEMRA Ordinance, 2002, so that the widest possible pool of qualified potential candidates could be attracted and were available with the Federal Government in order to make a choice based on best practices and in compliance of the requirements given in subsection (2) of section 6 with regard to the need for the Chairman of the authority to be an eminent professional of known integrity having substantial experience in media, business management, finance, economics or law. Vide notification dated 31.08.2015 the Prime Minister approved the composition of the Selection Board for appointment of Chairman PEMRA comprising of the following:- A. Minister for IBNH (Chairman)
B. Secretary, IBNH (Member)
C. Secretary Establishment Division (Member)
D. Director General IP IBNH (Secretary).
5. The advertisement attracted as many as fifty two applications from prospective candidates interested in the position so advertised. Thirteen candidates were found ineligible on account of the bar of age as contained in the proviso to section 7(1) of the Ordinance, 2002. Thirty nine candidates were found eligible and short listed for interview. It is the case of the respondent No,2 as well as the respondent No,4 that the entire exercise of short listing for interviews and the ensuing interview process was underlined by values of objectivity, transparency and due application of mind. Twenty one candidates were interviewed on 29.9.2015 and the remaining eighteen candidates went through the interview process on 30.09.2015. A questionnaire comprising of thirty questions was drawn up by the Selection Board which were the questions to be put to each candidate during the interviews. The questionnaire so formulated had a direct nexus with the provisions of the Ordinance, 2002 and constituted an objective benchmark for determining the eligibility and suitability of each candidate for the high post for which they were being interviewed.
In paragraph 28 of the reply the respondent No,2 states that:-- "It is further submitted that the purpose of the said questions was to eliminate the element of subjectivity and structure the discretion of the Federal Government vide an inclusive process. It is averred that the manner in which the questions were formulated was designed for the purpose of inquiry and/ or due diligence into the self-generated applications of the said candidates, in order, to ascertain their veracity etc. In such manner, the said Selection Board, in its discretion was able to gauge the ability, integrity, experience, expertise and eminence of the said potential applicants/ candidates."
6. It is the case of the respondents that the Federal Government in its discretion chose a person from amongst the potential applicants best suited for the post of Chairman PEMRA. A summary was moved to the competent authority in terms of Civil Establishment Code-2007 (Volume-1, Chapter-2, Serial No,140, Para 6; page 215) by which it was requested to notify the appointment of Absar Alam Haider as the Chairman PEMRA for a four-year tenure.
7. The terms in the earlier advertisement have been reproduced above which were varied in the subsequent advertisement through which the appointment of the respondent No,4 was made and which formed the entire basis for the said appointment. The terms with regard to eligibility and qualification as well as selection procedure in order to contrast them with the earlier conditions on these aspects are being reproduced for reference:- "Eligibility and Qualification: a. An eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law in accordance with Section 6(2) of the PEMRA Amendment Act, 2007. b. Graduation in (media sciences, business, management, finance, economics, law) from HEC recognized Pakistani/Foreign University. Foreign degrees shall be got verified from HEC before employment offer. c. Age between 50 to 61 years as on the date of press advertisement in terms of Cabinet Division's Instructions No, 6/12/2007/RA-1 dated 9th October, 2007-which have notified maximum age of 65 years OR expiry of the tenure (whichever is earlier) for holding the post of Chairman / Chief Executive of Regulatory Authorities. d. Written evidence of 20 years experience in disciplines identified (a-above). e. Government Servants meeting the eligibility criteria may also apply provided they submit an undertaking along with their, application to resign from their existing employment in case of selection.
Selection Procedure: The selection of candidate will be made in line with the prescribed procedures laid down by the Government of Pakistan in Civil Establishment Code-2007(Vol-1 : Chapter -2 : SI. No,140-141 : pages ---213 -217 which focuses the procedures for appointments in Autonomous Bodies under the Federal Government."
8. It will be seen upon a comparison of the two advertisements that the eligibility in the previous advertisement with regard to the academic qualifications were MA/ M.Sc./ MBA/ LLB/ LLM from HEC recognized university in Pakistan or abroad which degrees were to be verified through HEC. As against that in the subsequent advertisement the academic qualification was scaled down to Graduation in (Media Sciences, Business, Management, Finance, Economics, Law) from HEC recognized Pakistani/ Foreign University. The first attack of the petitioner relates to the considerable lowering of the bar in the academic qualification and according to the learned counsel for the petitioner this was done to benefit the respondent No,4 and was tailored for the purpose of enabling the respondent No,4 to apply for the said position.
9. Also the selection procedure given in the earlier advertisement was to be based on the orders/ judgments of the superior judiciary whereas in the subsequent advertisement the selection procedure was to be made in line with the procedure laid down by the Government, of Pakistan in Civil Establishment Code, 2007, which relates to the procedure for appointments in autonomous bodies under the Federal Government. Once again, the selection procedure omitted to make a mention of the dicta of the superior courts with regard to such appointments and which brought a sea-change in the entire appointment process of posts in autonomous bodies tasked with specialized functions of regulating and to superintend various disciplines and fields of activity. The importance of this change will be brought forth in the proceeding paragraphs with special reference to the judgments of the Supreme Court of Pakistan in which foundational guidelines were settled for such appointments to be made, by the Federal Government.
The Relevant Law: 10.PEMRA Ordinance, 2002 regulates the electronic media in Pakistan and the purpose of the law as delineated in its preamble is to provide for the development of electronic media in order to improve the standards of information, education and entertainment; enlarge choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology etc. and to facilitate the devolution of responsibility and power to the grass- roots by improving the access of the people to mass media at the local and community level. We are not concerned with the generality of the various provisions which comprise the Ordinance, 2002. However, the relevant provision with regard to the appointment of the Chairman PEMRA is encapsulated in section 6, which is as follows:---
6. Members of Authority.- (1) The Authority shall consist of a Chairman and twelve members to be appointed by the President of Pakistan.
(2)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.
(3)Out of twelve members one shall be appointed by the Federal Government on full time basis and five shall be eminent citizens chosen to ensure representation of all provinces with expertise in one or more of the following fields: media, law, human rights, and social service. Of the five members from the general public, two members shall be women.
(4)Secretary, Ministry of Information and Broadcasting, Secretary, Interior Division, Chairman, Pakistan Telecommunication Authority and Chairman, Central Board of Revenue shall be the ex officio members.
(4A) The remaining two members shall be appointed by the Federal Government on need basis on the recommendation of the Chairman.
(5)The members shall receive such fee and expenses for each meeting as may be prescribed.
(6)A member, other than an ex officio member, shall be deemed to have vacated his office if he absents himself for three consecutive meetings of the Authority without the leave of the Authority."
11. Section 7 relates to the tenure of members and provides that the Chairman and members, unless earlier removed for misconduct or physical mental incapacity shall hold office for a period of four years and they shall retire on attaining the age of sixty-five years. Section 9 deals with remuneration of the Chairman and members and provides that:- "9. Remuneration, of Chairman and members.- (1) The Chairman and members shall be paid such emoluments as the President of Pakistan may determine and shall not be varied to their disadvantage during their term of office."
12.Therefore section 6, reproduced above, gives an inkling regarding the appointment process and to say the least does not prescribe any elaborate procedure for the purpose and grants discretion in the hands of the President of Pakistan to appoint the Chairman and twelve members of the authority. Subsection (2) provides that 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. Therefore, the power vesting in the Federal Government. is wide-ranging and polycentric and its precise contours have not been spelt out which would guide the Federal Government to appoint the Chairman. The broad sinews of the power given in subsection (2) are merely that the Chairman shall be an eminent professional of known integrity and competence. However, as will be brought forth in the proceeding paragraphs, the Supreme Court of Pakistan in a number of cases forming a high water-mark of judicial control has had the occasion to deal with such appointments and has laid down rigorous criteria for compliance by the Federal Government in appointments to be made to autonomous bodies and other regulatory bodies of the Federal Government so as to structure the discretion and to provide for the periphery of the power to be exercised in such matters.
13.In its power of judicial review of administrative actions and in particular appointments of administrative posts and public sector organizations, the rule which underpins such a review is whether the appointment process conforms with the rules governing such appointments. In the reply filed by the respondent No,2, Ministry of Information, Broadcasting and National Heritage, an impression was sought to be conveyed that the Ministry of IBNH 'delineated a stringent process ensuring obedience to the legislative command given in the Pakistan Electronic Media Regulatory Authority Ordinance of 2002, the relevant principles/dictates settled by the Supreme Court of Pakistan and, therefore, the requirements of law were met in appointing Absar Alam Haider, the incumbent Chairman, as perhaps the first person in the history of PEMRA, to be appointed through an open and credible selection process that was adopted after sufficient publicity and followed with rigor, objectivity, transparency and due diligence in compliance with the relevant, applicable and settled laws". The reply further goes on to refer to a history of the appointment of Chairmen of PEMRA over the years and also refer to the orders passed by the Supreme Court of Pakistan in C.P No,104/2012 and in particular the order dated 17.9.2012. It goes on to refer to other orders passed in C.P No,105/2012 which, it seems, related to the appointment of Chairman of PEMRA as also to the question whether Acting Chairman of PEMRA could be appointed or not. On 24.06.2015 in C.P No,105/2012 the following order was passed:--- "2. The issue, which is now outstanding, is the composition of PEMRA, as an independent Regulatory Authority for the Electronic Media in Pakistan. On the last date of hearing, we had passed an order, which specified inter alia that "PEMRA shall be constituted as a neutral and independent regulator in accordance with the provisions of section (6(2) and (3) of the PEMRA Act". We had also noted that the process of appointing the Chairman and Members of PEMRA should be transparent and should be in line with the procedures and eligibility criteria mutatis mutandis, which generally had been set out for Regulatory Bodies in the cases titled as Muhammad Yasin v. OGRA (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Federation (2013 SCMR 1159).
3..... It was expressed as our hope and expectation that the Executive, as the appointing authority, and PBA shall be able to come up with a common panel of acceptable names so that PEMRA remains properly constituted. Regrettably, this has not happened, as yet.
4.... the broadcasters have in mind some names, who fulfill the qualifications given in section 6 of the PEMRA Act, which inter alia requires the Chairman to be an eminent professional and members to be eminent citizens. At today 's hearing, it seems that it may not be a difficult exercise to come up with the people of such eminence and credibility, as can lend moral authority to PEMRA in addition to the legal authority vested in the said regulator.
5. The two sides have agreed to proceed in good faith and make efforts to come up with names of eminent professionals/citizens to occupy the position of Chairman and Members of PEMRA. Let them do the needful..."
14. The outstanding features of the order, reproduced above, is the recognition of PEMRA as an independent regulatory authority for the electronic media in Pakistan by the Supreme Court of Pakistan as also that PEMRA shall be constituted as a neutral and independent regulator in accordance with the provisions of section 6(2) and (3) of the Ordinance, 2002. It was also noted that the appointment of Chairman of PEMRA should be through a transparent process and in line with the procedures and eligibility criteria set out for regulatory bodies in cases titled Yasin v. OGRA (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Federation (2013 SCMR 1139). It may be pertinent to mention here that the petition in which the orders were being passed by the Supreme Court of Pakistan was brought, inter alia, by Absar Alam, the respondent No,4 and the current Chairman PEMRA. Finally on 19.8.2015, the following order was passed:---
1. Pursuant to that order Mr. Rashid Ahmed who claims to be the Chairman PEMRA has appeared.
Likewise, Mr. Kamal ud Din Tipu is also present who claims to be holding the post of Acting Chairman PEMRA.
2. After hearing Mr. Rashid Ahmed and after having gone through the various documents on record, it is apparent that the matter as to appointment of Mr. Rashid Ahmed as Chairman PEMRA is sub judice before Islamabad High Court in ICA No,267 of 2015. Without embarking upon examination of the merits of the said ICA, we direct as under:-- (a)That ICA No,267/2015 may be decided at an early date because the position of Chairman PEMRA is vacant since 13th August, 2015. A copy of this order shall be sent to the Registrar of the Islamabad High Court to be placed before Hon'ble the Chief Justice for appropriate orders.
(b)Until the said ICA is decided, the government may proceed with a rigorous and transparent process for filling the position of Chairman PEMRA in line with the principles of law laid down in the cases titled Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132) and Muhammad Ashraf Tiwana v. Pakistan (2013 SCM R 1159)
(c)The process of appointing the Chairman PEMRA shall be completed within 30 days positively.
4. Since at present there is no Chairman PEMRA and we have already held that there is no provision in the PEMRA Ordinance which permits an Acting Chairman, the agreed code of conduct which has been referred to above shall be deemed to be the code of conduct to be implemented forthwith till the same is duly notified by the duly constituted PEMRA in terms of Section 6 of the PEMRA Ordinance."
15. The appointment process was triggered by the order of the Supreme Court of Pakistan, reproduced above, and culminated in the said appointment of respondent No,4 who was appointed on 11.11.2015 in terms of section 7(1) of the PEMRA (Amendment) Act, 2007. The respondent No,4 took charge as Chairman on 01.12.2015. It would bear repetition that the selection process which has been brought forth in the reply of respondent No,2 narrates the events in seriatim by which the selection process was completed. It makes a reference to the advertisement dated 23.8.2015 which appeared in various newspapers and by which it was announced that the vacancy of the position of the Chairman PEMRA was sought to be filled. In pursuance of the advertisement, the Ministry of IBNH received applications from 52 candidates of which 13 were found ineligible and 39 candidates were found eligible and short-listed for interview. The Selection Board constituted for the purpose (which will be adverted to at a later stage) interviewed 21 candidates on 29.9.2015 and the remaining 18 candidates were interviewed on 30.09.2015. The Selection Board formulated 30 questions which were put to each candidate during the process of interviews. According to the reply, the questions formulated had a direct nexus with the purpose to be achieved in terms of the mandate of the Ordinance, 2002 and "it is further submitted that the purpose of the said questions was to eliminate the element of subjectivity and structure the discretion of the Federal Government vide exclusive process. This was the manner in which the questions were formulated and were designed for the purposes of inquiry and/ or due diligence into the self-generated applications of the said candidate, in order to ascertain their veracity etc. In such manner the said Selection Board in its discretion was able to gauge the ability, integrity, experience, expertise and eminence of the said potential applicants/ candidates. Further, the reply goes on to mention that the Federal Government in exercise of executive discretion chose a person from amongst potential applicants/ candidates one most suited to the post of Chairman PEMRA". Importantly, the respondent No,2 concedes that "Regulation is the most important function to be discharged by the PEMRA and autonomy has been ensured through enforcement of the legal checks upon appointments to important position therein, at the behest of the Executive/Federal Government."
16. The reply referred to above mentions the entire process which was employed for the selection of respondent No,4 as Chairman PEMRA. The process, it can be seen, was set in motion with the constitution of a Selection Board which interviewed the candidates and for which a set of 30 questions was formulated and which was put to each candidate according to the reply. In the estimation of the Selection Board, 3 candidates were found to be more eligible than the rest of the candidates interviewed and their names were forwarded to the Prime Minister for one of them to be appointed as Chairman PEMRA. The Prime Minister made a choice in favour of the respondent No,4 who was consequently appointed. The other two candidates who were recommended by the Selection Board were Dr. Muhammad Ali Sheikh, Vice Chancellor Sindh Madrassa ul Islam and Kamal ud Din Tipu, Acting Chairman PEMRA. It will have to be borne in mind at all times that the appointment process under challenge had its provenance in a case reported as Hamid Mir v.
Federation of Pakistan (PLD 2013 SC 244) (in which the respondent No,4, too was a petitioner) and which case was prompted by a desire to establish elevated and lofty vision regarding the appointment standards for Chairman, PEMRA.
17. As a prefatory, a reference to the first advertisement dated 23.7.2014 may be made which will set the tone for the discussion that follows. By that advertisement applications were invited for four year tenure appointment of Chairman PEMRA by the Press Information Department, Ministry of Information, Broadcasting and National Heritage. The position was placed in MP-1 Grade. The eligibility criteria as brought forth above had nexus with section 6(2) of the PEMRA Ordinance, 2002.
However, the qualification of the prospective candidates was mentioned as Masters from HEC recognized university in Pakistan or abroad. Another significant eligibility criteria was the requirement of the prospective candidates to provide written evidence of 15 years experience in organization of governance, management, administration, financial management, media management and marketing. This had a direct nexus with the post of Chairman PEMRA which was primarily concerned with the administration and management affairs and it is in this context that the appointment of the respondent No,4 will have to be seen. The selection procedure was to comport to the procedure and guidelines contained in the judgments of the superior judiciary.
Once again, this was a crucial aspect since the Supreme Court of Pakistan in particular had, in at least two cases, struck down appointments made on whimsical and tendentious grounds by the Federal Government and thus the anxiety of the Press Information Department to make the appointment on the basis of guidelines issued by the Supreme Court of Pakistan. This advertisement and the various conditions of eligibility and selection procedure have to be juxtaposed with the subsequent advertisement dated 24.8.2015 under which the appointment of the respondent No,4 was made. Significant aspects of the previous advertisement were conspicuously absent in the subsequent advertisement. For example, the academic qualification was watered down from Masters degree to graduation in media sciences, business, management, finance, economics or law from HEC recognized Pakistani/ foreign university. This condition has been flagged by the learned counsel for the petitioner to urge vehemently that the advertisement was tailored to suit the respondent No,4 as he was a graduate and therefore the academic qualification was lowered without reasonable cause and thereby a foundation was laid for the appointment of the respondent No,4. Prima facie, it seems that there was no cause for the academic qualification to be lowered unless the respondent No,2 had a predisposition to appoint the respondent No,4 and was therefore compelled to structure the advertisement in such a way that the respondent No,4 could be accommodated. The previous advertisement required the written evidence of fifteen years experience in organizations of governance, management, administration, media management and marketing etc. This condition in the subsequent advertisement was got varied in such a way that that advertisement merely required written evidence of twenty years experience in discipline identified in clause (a) i,e, substantial experience in media, business, management, finance, economics or law. Therefore, the more stringent requirement of experience in organizations of governance, media management etc. was toned down and the experience which was required to be furnished was merely with regard to any of the disciplines in general i,e, media, business, etc. Once again, there is no evidence that the respondent No,4 had any experience in matters of governance, media management, administration etc. but on the other hand he indeed had experience in media in general as he was a journalist previously and was associated with "AAJ" Television prior to his joining as Chairman PEMRA. The most significant change brought about in the subsequent advertisement was relating to the selection procedure and contrary to the earlier advertisement, the selection of the candidates was to be made in line with the prescribed procedure laid down by the Government of Pakistan in Civil Establishment Code-2007 (Volume-I, Chapter-II, Sr. Nos,140 and 141, pages 213-217). It may be recalled that in the earlier advertisement, the criteria of appointment was the guidelines laid down by the Supreme Court of Pakistan to which no mention was made in the subsequent advertisement. It would have been proper to make the Civil Establishment Code a basis had the said Code been modified and amended suitably in accordance with the judgments of the Supreme Court of Pakistan which, in fact, was not the case and therefore by so providing in the latter advertisement, the Federal Government/ respondent No,2 did not feel obliged to comply with the guidelines of the superior courts and chose to fall back on the bare minimum criteria given in the Civil Establishment Code. The relevant extract of the criteria is reproduced below:-- "The constitution of Selection Boards for posts mentioned at Serial Numbers (i), (ii), (iii) and (iv) of para 1 shall be subject to the approval of the Prime Minister/ Chief Executive through Establishment Division (unless already so approved)."
18. The rest of the conditions relevant for our purposes are also reproduced:-- "Sl. No,141 Policy Guidelines for Contract Appointments for Posts in Autonomous/Semi-Autonomous Bodies, Corporations, Public Sector Companies etc. Owned and Managed by the Federal Government.
"In order to regulate contract appointments in Autonomous/Semi-Autonomous Bodies, Corporations, Public Sector Companies etc., owned and managed by the Federal Government, the Chief Executive has been pleased to lay down the following policy guidelines:-
(i) In the case of tenure posts, appointment to which is regulated by specific provisions of a law, rule and policy instructions, contract appointments may be made in the manner prescribed in the applicable law, rules and policy guidelines/directions issued by the Federal Government.
(ii) For projects which have a limited life, appointments may be made on contract basis by the prescribed appointing authority after open advertisement of the vacancies. The advertisement should indicate prescribed academic and professional qualifications, experience, age, provincial/ regional quotas, special quotas etc. where applicable, as per rules/government policy.
(iii) For posts other than those mentioned at (i) and (ii) above contract appointments should be made only subject to fulfillment and observance of the following conditions:
(a) Where the nature of a particular job/vacant position requires contract appointment for a specific period, standing instructions should be issued by the administrative Ministry/Division concerned, after consultation with the Chairman of the Board of Directors/Board of Governors, specifying such posts and the parameters governing appointment on contract basis against such posts.
(b) Vacancies should be advertised in the leading national and regional newspapers.
(c) Selection should be made through regularly constituted Selection Committees/Boards.
(iv) In the case of contract appointments/re-employment of retired civil servants, retired Armed Forces Officers and retired Judges of Superior Courts, the condition of open advertisement shall not be applicable, provided that such appointments shall be made by or with the prior approval of the prescribed authorities in the Federal Government.
(v) The contract appointment, where justified, may be made for a period of two years initially, on standard terms including termination clause of one month 's notice or one month 's pay in lieu thereof Extension may be made on two yearly basis.
2. Ministries/Divisions are requested to circulate the above policy guidelines to all Autonomous/Semi-Autonomous Bodies, Corporations, Public Sector Companies etc., owned and managed by the Federal Government for strict compliance."
19. It can be seen that the relevant extract of the Civil Establishment Code does not lay down any guidelines or essential conditions to be considered for appointment to high posts of regulatory bodies of the Federal Government nor does it cater to the elements of independence and transparency which is at the heart of such appointment process and which was hammered in by the Supreme Court of Pakistan in Muhammad Yasin and Muhammad Ashraf Tiwana cases. Thus, the only basic requirement sought to be fulfilled by the Federal Government was to constitute a Selection Board for the post in question and to seek the approval of the Prime Minister. Although, both the steps were taken by the respondent No,2, this begs the question as to whether the essential conditionalities which must be complied with in all such appointments were indeed taken care of while appointing the Chairman PEMRA in the instant case. The appointment of Chairman, PEMRA was the direct result of a decision by Supreme Court of Pakistan. Scrupulous attention had to be given to the process and its various stages in order to comply with the core ingredients spelt out in a cluster of precedents handed down by the superior courts. For the purpose, it was imperative that the relevant portions of the Civil Establishment Code were suitably amended in order to bring it in line with the ratio settled by the Supreme Court of Pakistan. The wrongness of the whole process can at once be gauged by the failure on the part of the Federal Government to do so before undertaking the process. For it can be seen that there is hardly any guidance to be gleaned from the current version of the Code to be followed in such matters.
20. It is indeed incredulous to note that the academic qualification for the appointment of Chairman PEMRA was laid down as graduation in the disciplines identified in the column relating to eligibility and qualification. It is also not clear whether the respondent No,4 completed his graduation in either media sciences, business, management, finance, economics or law. It is common knowledge that graduation is not a professional degree and is a step towards acquiring a professional degree and one cannot help lamenting the fact that such a basic qualification was laid down for the appointment to the post of Chairman PEMRA who heads an authority which regulates the entire electronic media in Pakistan and is tasked with the onerous responsibility of the standards of education and entertainment and to enlarge choice to the people of Pakistan in the media for news, current affairs etc. and to improve the access of the people to mass media at the local and community level. In my opinion, this was the first misstep in the entire appointment process of Chairman PEMRA and I am certain that in the world of electronic media that we inhibit, much higher qualification is a minimum requirement for any person to apply for and be appointed as Chairman PEMRA. No record has been brought forth also which would show that the respondent No,4 furnished written evidence of his twenty years experience in any of the disciplines mentioned in clause "a". Be that as it may, the post of Chairman PEMRA by its very nature demands administrative and managerial skills and for which evidence was to be furnished in terms of the earlier advertisement. That condition was suitably amended and the aspects of governance and media management were not provided in the subsequent advertisement which also points to an ulterior motive in amending the said condition in order to suit the qualifications of the respondent No,4. I may hasten to add that the discussion is not meant to ridicule or cast an aspersion on the qualification held by the respondent No,4. It has to be viewed in the peculiar context of the criteria laid down in section 6(2) and its fundamental elements. We live in an era of specialists and highly trained professionals. The Authority by its very nature performs a skilled and specialized purpose and this can very well be gauged by the highly intricate and technical Regulations made by it under delegated powers to carry out its functions. Quite evidently the discretion vesting in the President! Federal Government is hedged in by the very stringent condition of the Chairman being an "eminent professional of known integrity and competence." The intention and mood of the legislature was not in doubt. The first condition that it envisaged was a high threshold of academic qualification at the least. To prescribe Graduation as a minimum qualification would mean to widen the choice to a large extent and which would, in turn, give leaves to the executive to stampede the process by the exercise of a wide range of discretion at its disposal. To lower the bar of educational qualification would be tantamount to compromising the structural enterprise of the PEMRA Ordinance. We must bear in mind that the appointment of Chairman, PEMRA is not by promotion but is an initial appointment and must not belittle the importance of a highly qualified (in terms of education) professional to man the office.
Appointment Process:
21. The following order was passed on 06.10.2016: "Any senior officer along with the original record about appointment process of respondent No,4 shall appear on the date fixed."
22.An application C.M No,1 of 2016 was filed on behalf of the respondents Nos,2 and 4 under Section 12(2) read with section 151, C.P.C. The contents of the application make an interesting reading. In a nub, the applicants sought the review of the order dated 06.10.2016 as having been procured by fraud and misrepresentation and suffering from want of jurisdiction and being suo motu. The following contents of the application are being reproduced in order to show that there was an acute sense of anxiety on the part of the applicants/respondents Nos,2 and 4 to have that order withdrawn and in the process, the applicants made unsavory and unpalatable observations in the application as ground for seeking a review of the order dated 06.10.2016. It was stated in the application that:--- "Four, if, however, the immediately preceding assumption of rehearing actually transpired, it patents that the impugned directions were obtained either by playing a fraud upon and/or by misrepresenting before this Hon `ble Court, since the plea of production of the entire record was averred in the petition, adequately denied in the comments to which is appended the relevant record, to the degree deemed justiciable by the Hon `ble . Supreme Court.
Five, if, however, it be assumed that this Hon`ble Court carried out the judicial function of distinguish the law settled by the Hon'ble Supreme Court, the same was done without judicial application of mind subsequent to due process of hearing the parties to the lis, therefore, violating the principles of natural justice i,e, audi alteram partem.
5.That this Hon`ble. Court in Terms of regulating its' discretion is yet to make pronouncement on the maintainability of the titled matter, what to speak of merits at this preliminary stage, where after the Respondent/Petitioner, a meddlesome interloper', shall cross the threshold of standing.
6.It is submitted that even if the Respondent/Petitioner had already crossed the said threshold the impugned directions are tantamount to granting the Respondent/Petitioner a roving enquiry into the files of government for the purposes of launching a fishing expedition, in order, to ferret out some sort of a case, where none exists, a practice disallowed by the Hon `ble Supreme Court.
That the element of fraud, connivance and collusion of Court staff is floating on the surface of the record since his Lordship Hon `ble Mr. Justice M. Qasim Khan would never have granted the impugned directions, after having earlier adjourned the matter due to the said written adjournment and without hearing parties to the lis." a. That in presence of the said written adjournment and nemo appearing for the Respondent/Petitioner, the impugned directions were somehow obtained by the Respondent/Petitioner by fraud, connivance and collusion with the staff of this Hon `ble Court, since a bare perusal of the order sheet manifests that paragraphs 3 and 4 have perhaps been inserted as an afterthought, when it had already been recorded in paragraph 2: 'adjourned to 23.11.2016'. Thus, the impugned directions are required to be recalled for having been obtained by fraud.
23. This application was dismissed as withdrawn on 07.11.2017. However, from the contents of the application it is manifestly clear that the applicants/respondents Nos,2 and 4 were extremely reluctant to produce the record as directed by this Court and went to the extent of stating that any such order requiring the production of the record was mala fide and outwith the authority of this Court. This position runs counter to the established principles of judicial review on administrative decisions on the ground that no procedural improprietary has crept in the entire process of selection of a candidate for a post such as the one in question. The least that was required of the respondents Nos,2 and 4 was to have produced the entire record by which it could be demonstrated without an iota of doubt that the process was fair and impartial and was in conformity with the settled principles for such appointments to be made. In short that the process was based on rational and reasonable grounds so as to enable this Court to analyse the quality of the discretion which permeated the whole process of appointment.
24. During the course of the final oral hearing, the learned counsel produced same documents which will shed light on the appointment process. In the beginning was the advertisement which has been alluded to hereinabove. One aspect of the advertisement apart from the ones which have been discussed above also needs to be flagged. It was mentioned in the advertisement that the position of Chairman PEMRA was placed in MP-1 Scale in terms of Finance Division's O.M.
No,F.3(2) R-1/2011, 24.12.2012 vis--vis salary package, perks and privileges. The O.M. is accessible on Finance Division's website. The advertisement went on to state that "the salary package, however, is negotiable in case of a candidate of outstanding abilities and/or experience subject to approval of competent authority". It will be recalled that the appointment of the respondent No,4 was made on 11.11.2015 and it was provided therein that the terms and conditions of his appointment shall be settled separately in terms of section 9 of the PEMRA Ordinance, 2002. Section 9 of the Ordinance, 2002 says that:--- "9. Remuneration, of Chairman and members.- -(1) The Chairman and members shall be paid such emoluments as the President of Pakistan may determine and shall not be varied to their disadvantage during their term of office."
25. Therefore, the emoluments of the Chairman and the members of PEMRA shall be determined by the President of Pakistan and shall not be varied to their disadvantage during the terms of their office. It may be recalled that the remuneration and terms and conditions of appointment of the respondent No.4 were determined on 08.04.2016 which gave the terms and conditions of the appointment as well as the remuneration approved by the competent authority. Suffice to say that the salary and allowances were to the tune of Rs.15,00,000/- (net of taxes). Thus, the advertisement dated 23.8.2015 did not mention the salary package which was ultimately extended in favour of the respondent No.4. The issue here is not that the respondent No.4 did not deserve the salary package which was ultimately notified for him but that the advertisement clearly mentioned the position to be one placed in MP-1 Scale and according to the Finance Division's notification of 24.12.2012 the maximum salary of MP-1 is Rs.3,24,000/- and, therefore, the salary package ultimately approved for the respondent No.4 was far in excess of the one which was mentioned in the advertisement. Quite clearly, the respondent No.4 relies on the further caveat mentioned in the advertisement relating to the salary package being negotiable but the fact remains that in case of an exceptional salary package being approved in favor of a candidate, it has to be determined as a fact that the candidate possesses outstanding abilities and experience. No record has been produced on the basis of which it was concluded by the competent authority that the respondent No.4 possessed far more outstanding abilities and experience as compared to the other candidates deserving an inflated salary package which was beyond the normal salary package due to an officer in MP-1 Scale. This aspect too goes to the root of the matter and was an important plank in the entire appointment process undertaken. It is also pertinent to note that the competent authority under Section 9 of the Ordinance, 2002, is the President of Pakistan and once again no document was produced which would show that the salary package of respondent No.4 was approved by the President of Pakistan and this Court is compelled to presume that there was no approval by the President of Pakistan which too offends the clear mandate of section 9 of the Ordinance, 2002.
Once again, the question is not whether the respondent No.4 was or was not a candidate of outstanding abilities but the question is whether the outstanding abilities were juxtaposed with the abilities of other candidates so as to give preference to the respondent No.4 as also that the President of Pakistan gave approval to his salary package.
26. By a summary dated 27.8.2015, approval of the Prime Minister was sought for the composition of a Selection Board for the appointment of Chairman PEMRA in terms of the relevant provisions of the Civil Establishment Code. In that summary a reference was also made to the orders passed by the Supreme Court of Pakistan on 19.8.2015 which have also been reproduced above and which directed the Government to proceed with a rigorous and transparent process for filling the position of Chairman PEMRA in line with the principles laid down in Muhammad Yasin and Muhammad Ashraf Tiwana cases. Therefore, the emphasis was on a rigorous and transparent process and which was in line with the principles of law laid down in the precedents of the Supreme Court of Pakistan. I shall advert to the question whether the principles of law settled by the Supreme Court of Pakistan were adhered to in the instant case or not at a later stage. For the present purposes, the composition of the Selection Board makes an interesting reading. The proposed Selection Board was to comprise the members whose mention has been made in the preceding paragraphs. In short, the Selection Board was to be comprised of the Minister of Information, Broadcasting and National Heritage, Secretary IBNH, Secretary Establishment Division, Secretary Law and Justice Division and D.G IBNH. Therefore, it can be seen that the composition of the Selection Board entirely consisted of the members who were part of the Government and directly reported to the Prime Minister. The Prime Minister approved the summary by excluding the Secretary Law, Justice and Human Rights Division which made little or no difference. The upshot of a reference to the Selection Board is that none of the members was an independent member who was not part of the Government or the Division which was the controlling Division of PEMRA and so could act in a bipartisan manner and who could exercise his discretion without any dictation or extraneous considerations. Also none of the members of the Selection Board was specialized in the field of media or transmission who could assess properly and with dexterity the merit and competence of the candidates who applied for Chairman PEMRA. The setting up of such a Selection Board was a complete farce and a mockery of the entire process which was to follow. The natural inference to be drawn from the composition of such a Selection Board would be that the Board was likely to be influenced by the executive which had a bias in favour of a particular candidate and could exert pressure on the Selection Board to select a candidate more suited to the executive and the Government so as to further the political agenda of that Government in myriad of ways by exercising swa y over the electronic media. The summary referred to the Selection Board as a "dedicated" selection board. The least that was required for any such selection board was to exude a sense of being "dedicated" to the task in hand and to accord to the purpose and core objective for which it was being set up. It is common ground that the position of Chairman PEMRA wields considerable clout and influence and the political Government has a critical stake in the person to be appointed. One can conjure numerous instances where the Executive might want certain information withheld or its dissemination curtailed. Any media corporation might find itself on the wrong side of the Federal Government for the Federal Government/ Executive to take punitive measures against that media house. Thus it does not tax the credulity of the credulous to imagine the high stakes in the appointment that the executive has. Certainly it will have no stone unturned to bring an incumbent of its own choice as Chairman, PEMRA. PEMRA also acts as a buffer between the executive and the rights guaranteed under Articles 19 and 19A of the Constitution to the citizens. Those rights can only be protected against any unscrupulous intrusion by the executive if PEMRA is alive to its role as a neutral arbiter and a gatekeeper of those rights. Thus the constitution of a bipartisan and independent selection board is the first step in the process which was brushed under the carpet in this case.
27.Finally a notification was issued on 31.8.2015 relating to the composition of the Selection Board.
Interviews calls were issued by the Selection Board on 18.9.2015. As stated above, a number of candidates appeared for interview on 29.9.2015 and 30.09.2015. At least four of the candidates possessed a doctorate degree and once again the record is woefully lacking in respect of those candidates and the reasons which weighed with the Selection Board not to consider these candidates who had outstanding academic credentials at least. Likewise, the respondents have not produced any record relating to other candidates interviewed by the Selection Board so as to enable this Court to see that the discretion was properly exercised and an informed decision was made by the Selection Board.
28.With regard to the composition of the Selection Board and its members, an aspect needs to be highlighted at this stage. The authority is composed of a Chairman and 12 members to be appointed by the President of Pakistan. The Federal Government may appoint one member out of the twelve on full time basis whereas five members have to be eminent citizens which is meant to ensure representation of all provinces with expertise in one or more of the fields given in subsection
(3) of section 6. Subsection (4) of section 6 says that:-
(4) Secretary, Ministry of Information and Broadcasting, Secretary, Interior Division, Chairman, Pakistan Telecommunication Authority and Chairman, Central Board of Revenue shall be the ex officio members.
29. Interestingly, the Secretary, Ministry of Information and Broadcasting was also a member of the Selection Board constituted by the Prime Minister to select the Chairman PEMRA. This is a contraption and a serious contradiction, in that, a member of the authority has been made part of the Selection Board for the purposes of selection of Chairman PEMRA. It completely escaped the attention of the authority which proposed and the one which approved finally the Selection Board that the member of the authority cannot be part of the Selection Board and to do so would be irrational and unreasonable.
30.As stated above, no record was produced with regard to the qualifications of the candidates who applied for being appointed as Chairman PEMRA. Nor any record was produced to demonstrate the material relating to the eminence, professionalism or facts regarding integrity and competence of those candidates. It is unclear as to what substantial experience in media, business, management, finance, economics or law did those candidates possess. Finally the deliberations amongst the members of the Selection Board while weighing the comparative qualifications and eligibility of the candidates has not been produced so as to justify and substantiate the selection process. In the absence of such material before this Court it was well high impossible to review the process and to conclude that the appointment chimes with a proper and rational selection process and must be upheld as such.
31. The respondents Nos.2 and 4 contend that thirty questions were drawn up for the interview to be conducted by the Selection Board. Therefore, as per the respondents' own showing the process was based on objective criteria and was rigorous and inclusive. By necessary implication, the candidates had to respond to the thirty questions in a cogent and reasonable manner so as to satisfy the Selection Board as to the credentials of the candidates and to lend the entire process an air of respectability and objectivity. The purpose was clearly to make the process more effective and transparent. Having laid out the purpose of forming thirty questions for interview, it inevitably follows that meticulous record should have been maintained with regard to each candidate and the answers to these questions furnished by that candidate. These answers must have been compared inter se by the Selection Board while making its decision to short-list the three candidates. The analysis of those answers by the members of the Selection Board and the conclusions drawn on the basis of those answers has been conspicuously withheld by the respondent No.2. The failure of the respondent No.2 to produce that record voluntarily and of its own motion before this Court compels this Court to draw the inference that the entire process was farcical and opaque and it is not certain that these questions were, in fact, put to the candidates and the decision was made by objectively making an assessment on the basis of the answers delivered by the candidates respectively. Although sheets have been produced which mention the thirty questions for the Chairman's interview, once again the minutes of the meeting of the Selection Board in which these questions were formulated and finalized to be put to the candidates have not been produced. No credibility and authenticity can be attached to the documents produced before this Court. It has also been noted that the respondent No.2 in its reply has stated without equivocation that the purpose of formulating thirty questions which were asked of each candidate, was to gauge "ability, integrity, experience, expertise and eminence of the said potential applicants/ candidates." Thus, the respondent No.2 does not deny the fact that the thirty questions were put to each candidate and which formed the basis for arriving at the decision of the Selection Board. Regrettably, the minutes of the meeting of the Selection Board to augment the assertion made in the reply have not been produced before this Court.
32. The rest of the documents placed on record relate to the qualification and academic degree and service of the respondent No.4. The Bachelors of Arts degree, issued by the University of Punjab was verified by the University of Punjab. The respondent No.4 has filed copies of certain documents which purport to supplement his educational credentials which were not originally produced with the reply. This includes a one year long Graduate Advance Diploma in the English language from National Institute of Modern Languages about which the HEC in its letter has stated that it was issued by a non-chartered institution and has refused to determine its authenticity or level of studies. It also includes a fellowship program at the Harvard University 2004-05 and International Relationship INSEAD Business School, France. However, we are not here concerned with the academic qualifications of the respondent No.4 in a unilateral and one-sided manner since a comparison with the other candidates cannot be made because the academic credentials of those other candidates has not been produced before this Court. The purpose is not to belittle or discredit the academic qualifications of the respondent No.4 or to hold that he is not an eminent professional which is not the purpose of this Court's holding in the instant petition. The real purpose is to assess and review the lawfulness and the propriety of the appointment process on settled principles of administrative and public law.
Opinion:
33. As adumbrated, the documents brought forth by the respondents Nos.2 and 4 for the perusal of this Court are utterly lacking for the purposes of assessment of the criteria which was used for the appointment of Chairman PEMRA. The advertisement referred to the Civil Establishment Code as the basis for the selection procedure. As has been brought forth above, the Civil Establishment Code is remarkably silent with regard to the appointment process. It contains no explicit provision defining the process and merely refers to a Selection Board to be constituted to undertake the appointment of Chairman PEMRA. This was the clear departure from the earlier advertisement which prescribed the process to comply with the directions issued by the Supreme Court of Pakistan in Muhammad Yasin and Muhammad Ashraf Tiwana cases. Certain implicit reference with regard to the appointment process and the criteria underlying such process can be culled out from the thirty questions which were purportedly formulated to be put to the candidates. However, no intelligible principle is discernable as a statutory limit to guide the exercise of discretion by the Selection Board or that the courts charged with reviewing the exercise of delegated powers will be able to test that exercise against ascertainable standards. The Chairman PEMRA was not to speak the Government line and so the process should be such as not to smack of exercising control in a manner that places a premium on loyalty and ideological affinity. It should not be a tool of governmental control. In short, the process must be consistent with specific provisions and overall structure of the Ordinance, 2002 and the Constitution. It must be borne in mind that our constitutional system is described as one of separation of powers. Equally often it is described as one of checks and balances. Therefore, appointments of heads of departments and administrative agencies including regulatory authorities must conform to settle principles of improprietary and transparency and objectivity. In a way, the authority set up under the Ordinance, 2002 and Chairman by extension exercised sovereign powers of the State and the process must commensurate with the high place that the position of the Chairman PEMRA occupies.
34. Let me now allude to the grounds of illegality which can render an administrative decision or other exercise of a public function as unlawful, if the decision-maker:- a. Misinterprets a legal instrument relevant to the function being performed b. has no legal authority to make the decision c. fails to fulfill a legal duty d. exercises discretionary power for an extraneous purpose e. takes into account irrelevant considerations or fails to take account of relevant considerations f. improperly delegates decision-making power.
"The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker.
The instrument will normally be a statute or delegated legislation, but it may also be an enunciated policy, and sometimes a prerogative or other common law power. The courts when exercising this power of construction are enforcing the rule of law, by requiring administrative bodies to act within the "four corners" of their powers or duties. They are also acting as guardians of Parliament's will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament's enactment."
(De Smith's Judicial Review, seventh edition)
35. PEMRA as a public authority has overarching statutory duties and Ordinance, 2002 creates duties regarding the enforcement of fundamental rights conferred by the Constitution, socio- economic policies, freedom of expression and grant of licenses of various nature. These are all public sector duties and it would be unlawful for PEMRA to act in a way which is incompatible with the duties cast upon it under the Ordinance, 2002.
36. The Ordinance, 2002 and section 6 in particular required the Selection Board to have regard to some desirable goal. This is a principle of administrative law which stipulates that the public bodies have a duty to have regard to the desirability of something. The following statement in De Smith's Judicial Review (Seventh Edition), will shed some light on the nature of the duty to be performed by a public body and which aptly applies to the duty to be performed by. the Selection Board: "Duties such as these are described as "mandatory" but not imposing "a duty to achieve results".
In challenges _to alleged failures to fulfill "to have regard to" duties, the courts have laid down guidelines as to what is expected of a public body. The required approach is contextual: "'Due regard' is the 'regard that is appropriate in all the circumstances' ". It is not sufficient for the public body to show merely that it made its decision with "a general awareness of the duty"; a "substantial, rigorous and open-minded approach" is required. The test whether a decision-maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with "vigour and an open mind". The duty requires a "conscious directing of the mind to the obligations". "Due regard" must be given "before and at the time that a particular policy that will or might affect disable people is being considered by the public authority in question". Due regard to the duty must be an "essential preliminary" to any important policy decision, not a "rearguard action following a concluded decision". Consideration of the duty must be an "integral part of the formation of a proposed policy, not justification for its adoption". "
37. Thus, the duty requires a substantial, rigorous and open-minded approach and to have due regard to the substance of the matter and not of mere form. More importantly due regard to the duty must be an essential preliminary to any important policy decision and not a rearguard action.
The question whether due regard has been paid by the public body is for the courts to review and in doing so, the courts have to ensure that there has been a proper and conscience focus on the statutory criteria. This case falls in the categories of cases where there is a failure to take account of relevant considerations and on this account, perhaps, the decision was based upon irrelevant considerations. In this regard, it was said in De Smith 's Judicial Review that: "If the ground of challenge is that relevant considerations have not been taken into account, the court will normally try to assess the actual or potential importance of the factor that was overlooked, even though this may entail a degree of speculation. The question is whether the validity of the decision is contingent on strict observance of antecedent requirements."
38. Since there are no reasons available for the decision taken as also that it seems that relevant considerations were not taken into account, this Court is within its right to infer that an extraneous purpose was being pursued. The question here is that the Selection Board was a designated Selection Board specially constituted to undertake the selection of Chairman PEMRA. It evolved a certain procedure which in its estimation was a valid criteria to judge the ability and competence of the candidates who appeared before it to seek the position of Chairman PEMRA. The questions put to different candidates constituted the evidence and the reasoning of the Selection Board and the decision reached by it ought to relate to the evidence which was gathered during the course of the interviews held for different candidates. There is no record to suggest that that evidence was considered by the Selection Board in selecting three candidates to be short-listed and thus this was a material mistake or disregard of a material fact which renders their decision irrational and unreasonable To reiterate, these proceedings of judicial review consider the defect in the process of arriving at the decision; in the way the decision was reached or in the manner by which it has been justified. The focus here is upon the factors taken into account by the decision--maker on the way to making the decision and the evidence by which the decision was influenced. This Court will not also go into the academic or other credentials of the respondent No.4 though they may be a relevant factor to be considered in the minimum qualification prescribed in the advertisement. The competence and the professional ability of the respondent No.4 is also not in doubt nor do I intend to pass any observations with regard thereto. These were matters to be considered by the decision-maker but in conjunction with the credentials and academic qualifications, professional experience etc. of the other candidates brought forth during the course of the interviews conducted by the Selection Board and on the basis of which the exercise of discretion was to be made.
39. What matters were before the Prime Minister which were so relevant or ones that he must know to form relevant considerations to be taken into account to the exercise of discretion? Was there a report by the Selection Board and the matters about which he was informed? If not, courts may infer that an extraneous purpose was being pursued. It was relevant that the entire proceedings of Selection Board were before the Prime Minister and which were essential for him to know to the proper exercise of discretion. In recommending three candidates the Selection Board was acting improperly and unlawfully. By doing so, it was exercising powers which were outwith its authority and by doing so clearly exceeded its mandate. If the Prime Minister allowed this course to be followed then this Court is required to speculate about motives of the decision-maker. This begs the question: Would the decision-maker have reached the same decision if regard had been had to the relevant considerations or to the authorized purposes? Normally and quite evidently, the Prime Minister was likely to reach a different decision if the entire facts as regards the interview result of each candidate was before him. Upon such report having been compiled, it was perhaps legitimate for the Selection Board to have recommended three names but it was of vital importance that a complete report was compiled to fulfill the substantial purpose test and to rule out an illegitimate purpose. Sadly none was produced before this Court and the only inference is that the entire exercise was actuated by improper motives.
40. The four-tier process which comprises fair procedure in making appointments to key positions has been elaborated upon by the Allahabad High Court, India in Gorakhpur University Aff. College Teacher Asso. v State of U.P. 2015 (9) ADJ 283 in the following words: - The procedures which the State adopts in making appointments to posts of members in a statutory commission like the Higher Education Service Commission must be consistent with the standards and norms of fairness, which animate Article 14 Structural fairness in the decision making process leading up to the ultimate appointment of a member of the Commission is a requirement of the guarantee of equality and equal opportunity. These norms must be observed so that institutional processes meet the need for fair, transparent, objective and accountable governance. Basically, fair procedure in making appointments to the position of a member in the Commission must involve four stages:
(i) Formulation: (ii) Opportunity;
(iii) Decision making; and
(iv) Selection.
The stage of formulation involves agenda setting and laying down procedures antecedent to decision making. This has to be laid down in a manner which is consistent with the governing statutory provision. The stage of formulation would among other things cover the manner in which vacancies would be notified so as to be brought to the knowledge of the field of eligible candidates under the statute. It must involve the constitution of a Committee or team consistent with the statute - for processing the nominations or applications received. The stage of formulation may involve the constitution of a Search Committee which can tap the best candidates. The stage of formulation also involves setting down procedures which will be followed and time - lines. The second stage involving opportunity enables interested and eligible persons to respond to the notification so that candidatures across a broad spectrum of sources indicated in the statute are considered. If a Search Committee has been constituted, the Committee will facilitate the process of identifying prospective candidates. Personnel forming part of the Search Committee must possess knowledge, administrative experience and domain expertise. Members of the selection panel or Search Committee must be subject to rules of exclusion on the ground of bias and conflict of interest. The third stage of decision making involves the assessment of candidatures on the basis of applicable statutory norms. Where appropriate, a procedure of short listing may be envisaged where the number of candidates is large. The final stage is the stage of selection. Decision making must be based on eligibility and suitability as defined by the statute.
There must be documentation of the process at each stage. The material on the basis of which the decision is arrived at must show an application of mind to the credentials, competence and integrity of candidates. We have indicated the broad parameters and guidelines. The underlying principle is that institutional processes must be well defined, publicised and fair. That will at least in some measure ensure a movement to a system where competence and merit prevail over patronage, transparency prevails over secrecy and the prevailing culture of cynism is replaced by accountable and responsive governance which promotes public confidence in our institutions."
41. The above stages would, mutatis mutandis apply to the appointment of Chairman PEMRA as well and this was in fact the essence of Muhammad Yasin and Muhammad Ashraf Tiwana cases.
The convoluted course of appointment adopted by the Federal Government ran counter to the rules settled by the superior courts and was in defiance thereof. After Muhammad Yasin and Muhammad Ashraf Tiwana, the Federal Government was under a bounden duty to make appointments in accordance with objective criteria extensively discussed in those judgments. The process pointed out by the Allahabad High Court aptly encapsulates the minimum requirement in this regard and I hold that that is the procedure which ought to be followed while appointing Chairman, PEMRA and would be deemed to be incorporated in the Civil Establishment Code.
PEMRA:
42. A pivotal distinction must be brought out here so as to understand the basis of the challenge and this Court's anxiety to delve into this question. The objective of PEMRA as stated above and one which permeates the entire statute is to act as a regulatory enterprise of the electronic media. Its purpose is to maintain freedom of information as the keystone of good governance and representative democracy.
43. PEMRA has been organized as an independent administrative agency. Thus it is quintessentially, an example of an independent agency or regulatory commission headed by a Chairman and members who can be removed by President only for cause. In contrast, an "executive agency" is headed by a single person who serves at the President's pleasure. The distinction has been explored in Administrative Law and Regulatory Policy by Breyer, Stewart, Sunstein, Vermeule and Herz (Seventh Edition) in the following terms:-- "It has been a fundamental element of separation-of-powers doctrine, as developed by Locke and Montesquieu and defined by James Madison, that governmental intrusions on private liberty must be authorized by general rules formulated by a politically responsible group of officials.
These officials are supposed to be separate from the officials responsible for executing the rules.
Separation, so understand, is part and parcel of the ideal of the rule of law.
A central reason is that separation helps to promote uniformity and impartiality in the application of sanction. If the executing officials had the power to decide when sanction would be imposed, enforcement would be at best inconsistent and unpredictable, and might reflect the private interests and prejudices of those officials. (One of the Adolf Hitler's first goals was to acquire the power to rule by decree.). In contrast, in a situation in which rules are general and formulated by officials who may find it difficult to estimate how their own interests will be affected by the disposition of particular cases, it is more likely that the policies adopted will more nearly reflect a broad social judgment about desirable policy than the officials' own private advantage. This likelihood is increased if the officials in question must seek re-election. Moreover, the requirement that policies be general promotes increased predictability, thus facilitating private planning and security. The principle of separation of lawmaking and law-applying powers also reduces the power that government can exert against citizens - and reduces the possibility that the entire power of government could be taken over by any one faction, a core concern of the founding generation."
44.Thus the question which engages this Court is whether Chairman PEMRA is an executive officer restricted to the performance of executive functions and is merely one of the units in the executive department and inherently subject to the illimitable power of removal by the Chief Executive, whose subordinate and aid he is. An analogy can be drawn to the Federal Trade Commission of the United States created to enforce the antitrust laws whose composition and powers came under discussion in Humphrey's Executor v. United States 295 U.S. 602 (1935) and it was held that:--- "The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute must be free from executive control. The commission acts in part quasi-legislatively and in part quasi-judicially."
45. This in essence, is the nature of the Authority set up by the Ordinance, 2002 and thus its Chairman must be appointed by a process characterized by bipartisanship and imbued with meritocracy. "This rests on the distinction between "purely 'executive' officials and officials who exercise "quasi-legislative" and "quasi-judicial" powers (Morrison v. Olson 487 U.S. 654 (1988).
The Authority (and the Chairman by corollary) is the latter category of agencies.
46.In the United States, the Supreme Court has evolved the "substantial evidence" rule when called upon to review orders passed and decisions made by Administrative agencies. It was said that "substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. "Consolidated Edison Co. v.
Labor Board, 305 U.S. 197, 229. This was elaborated further in Universal Camera Corp. v. NLRB 340 U.S. 474 (1951) by Mr. Justice Frankfurter and in his opinion:-- "Three members of the Committee stated that the 'present system or lack of system of judicial review' led to inconsistency and uncertainty. They reported that under a 'prevalent' interpretation of the 'substantial evidence' rule 'if what is called 'substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored. Their view led them to recommend that Congress enact principles of review applicable to all agencies not excepted by unique characteristics. One of these principles was expressed by the formula that judicial review could extend to 'findings, inferences, or conclusions of fact unsupported, upon the whole record', by substantial evidence. The phrase 'upon the whole record' makes its first appearance in this recommendation of the minority of the Attorney General's Committee. This evidence of the close relationship between the phrase and the criticism out of which it arose is important, for the substance of this formula for judicial review found its way into the statute books when Congress with unquestioning--we might even say uncritical-- unanimity enacted the Administrative Procedure Act."
47. Justice Breyer (of the U.S. Supreme Court) laid the simple test of applying the substantial evidence rule in Allentown Mack Sales and Service v. National Labor Relations Board, 522 U.S. 359 (1998):--- "To decide whether an agency's conclusion is supported by substantial evidence, a reviewing court must identify the conclusion and then examine and weigh the evidence. If the majority is to overturn a court of appeals' substantial evidence' decision, it must identify the agency's conclusion, examine the evidence, and then determine whether the evidence is so obviously inadequate to support the conclusion that the reviewing court must have seriously misunderstood the nature of its legal duty."
48. If we were to apply the same substantial evidence test to the present case, it is pretty straightforward to indentify the conclusion. But upon examination of the evidence, it is so woefully and obviously inadequate to support the conclusion and hence inconsistent with the Ordinance 2002. The jurisprudence developed thus far has kept no room for doubt as to the kind of scrutiny which courts must give the record before the selection board or the Prime Minister (in this case) to satisfy itself that the Prime Minister's order rests on adequate proof.
Petitioner's standing:
49. The counsel for respondents Nos.2 and 4 made a flanking rather than a frontal attack on the standing of the petitioner to secure judicial review of the appointment of Chairman PEMRA. In seeking a relief under Article 199 (1) (b)(ii) of the Constitution, there is no requirement that a party seeking review must allege facts showing that he is himself adversely affected nor does it insulate executive action from judicial review, nor any public interest from being protected through the judicial process. Article 199 (1) (b)(ii) reads as under:- "199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) ............................
(b) on the application of any person, make an order-- (i)...........................
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
50. Thus With regard to the relief claimed under this provision, the framers had liberalized rules of standing in mind and did not fetter it by the traditional rules. The court will not seek proof of direct injury though it may enquire into the motives of the petitioner. In any case, it is otiose to raise such a challenge since the superior courts have established a jurisprudential connection between the citizens' rights guaranteed by the Constitution and the appointment process for posts to Administrative agencies/ regulatory bodies. This right to acquire information of the entire process can also be culled out from Article 19A of the Constitution and thus enforced through the remedy of Article 199(1)(b)(ii). From the dicta of the superior courts read in conjunction with Article 19A of the Constitution, as also from the very nature of PEMRA as a regulator, procedural and substantive requirements on public authorities are imposed by the doctrine of legitimate expectation. The appointment of the Chairman PEMRA generates a legitimate expectation and the public authority/Executive is required to take the expectation into account: (R. (on the application of Bibi) v. Newhan LBC [2001] EWCA Civ 607; [2002] 1 W.L.R 237). Be that as it may, the burgeoning power of judicial review confers jurisdiction and authority on the court to control executive action in the matter of making appointments to public officer against relevant statutory provisions. It was held in a recent judgment of the Supreme Court of India in Central Electricity Supply Utility of Odisha v.
Dhobei Sahoo, (2014) 1 SCC 161 that:---- ".... When a writ of quo warranto is filed. it is the obligation of the relator to satisfy the Court that the office in question is a public office and is held by the usurper without the legal authority. It is the duty of the Court to see whether the appointment has been made contrary to the statutory rules.
The issue of institutional integrity has also to be taken into consideration when a post is filled up and that is where the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable are required to be seen..."
51. These principles were reiterated in Gorakhpur University Aff. College Teacher Asso. v. State of U.P. 2015 (9) ADJ 283 by the Allahabad High Court in the following words:- When the jurisdiction of the Court is invoked for the issuance of a writ of quo warranto, two aspects have to be borne in mind by the Court. The first is that it is the duty of the Court to scrutinize whether the appointment has been made contrary to statutory rules or provisions. The second, as the doctrine of quo warranto has evolved, is that the Court is also required to take up the issue of what the Supreme Court has termed as the "issue of institutional integrity". As part of this process, the Court has to consider whether an appointment which has been made to a public office was in pursuance of a procedure which was fair, just and reasonable.
13. The second aspect of "institutional integrity" is of significant importance in contemporary times. Article 14 of the Constitution requires procedures under law to be fair, just and reasonable and procedures in regard to appointments to public offices cannot be an exception. Transparency in matters of public appointment and good governance are structural issues which are of the highest concern and, as the doctrine associated with Article 14 evolves, it has become necessary to emphasize that the power of making appointments to public offices has to be wielded and exercised in a manner consistent with public interest. The object is not only to ensure that persons with appropriate qualifications hold the post but also that the process itself engenders public faith and confidence. Equality in matters of appointment to public offices postulates that the process leading up to the appointment must be fair and reasonable. Persons who are eligible and qualified must have an equal opportunity to be considered for appointment.
52.Here I shall quote from the dissent of Justice Blackmun in Sierra Club v. Morton 405 U.S. 727 (1972): --- "2. Alternatively, I would permit an imaginative expansion of our traditional concepts of standing in order to enable an organization such as the Sierra Club, possessed, as it is, of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment, to litigate environmental issues. This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. It is no more progressive than was the decision in Data Processing itself. It need only recognize the interests of one who has a provable, sincere, dedicated, and established status. We need not fear that Pandora's box will be opened or that there will no limit to the number of those who desire to participate in environmental litigation. The courts will exercise appropriate restraints just as they have exercised them in the past...
Any resident of the Mineral King area the real "use" is an unlikely adversary for this Disney- governmental project. He naturally will be inclined to regard the situation as one that should benefit him economically. His fishing or camping or guiding or handyman or general outdoor prowess perhaps will find an early and ready market among the visitors. But that glow of anticipation will be short-lived at best. If he is a true lover of the wilderness - as is likely, or he would not be near Mineral King in the first place - it will not be long before he yearns for the good old days when masses of people - that 14,000 influx per day - and their thus far uncontrollable waste were unknown to Mineral King..."
53.He went on to refer the observation and warning of John Donne:
21. No man is an Iland , intire of itself; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lessee, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any man's death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee. "Devotions XVII".
54. Here, the petitioner is enforcing his right enshrined in Article 19A and thus has sufficient interest in maintaining this petition. He must not allege an injury in fact though that may have happened in a myriad of ways. PEMRA is a buffer between the Government and the right to information which impacts a vast majority of the people of Pakistan. Its role as a gatekeeper will be seriously undermined if the appointment process under Section 6 is tainted and suffers from the vice of political intrusion. Quite obviously, the Government has a keen interest to appoint someone who speaks the Government's line. As adumbrated, the Authority performs both quasi legislative as well as quasi-judicial functions and is an independent agency which should necessarily embark upon the performance of its functions by an impartial appointment process.
Standards of Transparent Appointment Process:
55. Three judgments of the Supreme Court of Pakistan in recent times have brought about a paradigm shift in the requirements of appointment process to regulatory authorities so as to preserve the independence of these regulatory authorities and also to lend semblance of good governance in the functioning of the regulatory authorities and which would in turn impact not only the economic lives of the people of Pakistan but also contribute to the different aspects of representative democracy. Hamid Mir and another v. Federation of Pakistan and others (PLD 2013 SC 244) was a case brought by the respondent No.4, Absar Alam himself and raised a grouse with regard to the illegality being perpetrated by the Federal Government in either keeping the post of the Chairman PEMRA as vacant or to have a temporary incumbent of that post which was not conducive to the proper and efficient functioning of PEMRA as an institution and regulatory authority. In the proceedings which followed certain orders were passed for ensuring a permanent appointment to be made of Chairman PEMRA and which was ultimately done by appointing the respondent No.4 and which process is under challenge in this petition. The only paragraph that I shall refer to at this stage is the following:--- "6. Based on the above, we are quite clear that the Content Regulations which were notified on 25- 9-2012 cannot be construed as regulations issued by PEMRA. We may also add that the position of Chairman PEMRA has to be filled by a person who fulfils the exceptional and stringent requirements prescribed in the PEMRA Ordinance and not by a casual appointee. Moreover, the appointment has to be made through an open and transparent process to ensure that the appointee meets the objective criteria specified in the PEMRA Ordinance."
56. Thus, the Supreme Court of Pakistan was categoric that the appointment has to be made through an open and transparent process so that the appointee meets the objective criteria specified in the PEMRA Ordinance, 2002. Muhammad Yasin v. Federation of Pakistan through Secretary Establishment Division Islamabad and others (PLD 2012 SC 132) is a watershed case which analysed the appointment process to various regulatory authorities and laid down certain standards to be followed by the Federal Government in making appointments to key-positions of independent regulatory and administrative authorities. The issue in Muhammad Yasin related to the appointment of Chairman OGRA and which appointment was brought under challenge. The Supreme Court of Pakistan reiterated the rule that judicial review is about examining integrity of the decision making process. What is unusual in this case is that the Supreme Court of Pakistan in view of the peculiar nature of the farts and circumstances delved deep into the record so as to conclude whether the appointment process was proper or suffered from illegalities which rendered the entire process ultra vires and untenable. Also in Muhammad Yasin tile Supreme Court of Pakistan established emphatically a connection between fundamental rights which inhere in the citizens of Pakistan and the regulatory authorities and their proper and independent functioning.
Thus a nexus was created between the appointment process and the entire array of fundamental rights which are liable to be adversely impacted by appointments going sour and being tainted by cronyism and lack of transparency. It was held that:--- "Therefore, on the basis of the Ordinance, the public can demand that regulators be diligent while protecting the public interest and that their functionaries meet the standards and eligibility criteria prescribed for them by law. Also, once the Legislature has laid down qualifications which senior regulatory functionaries must have, the public is entitled to invoke the jurisdiction of Courts to ensure adherence to the law."
57. It can be seen that in the holding of the Supreme Court of Pakistan if the legislature had laid down qualifications for senior management of the regulatory authorities to possess, the public was entitled to invoke the jurisdiction of the courts to ensure adherence to taw. This should also answer the threshold objection raised by the respondent No.4 regarding the maintainability of this petition.
While creating a relation to exist between fundamental rights and the appointment process of independent administrative agencies, it was said that:- "Therefore, if taxes or fees are spent in violation of law it would amount to breach of Articles 3, 4 and 5 (2) of the Constitution, and would also constitute denial of the citizens' fundamental rights guaranteed by Articles 9, 14, 18, 23 and 24. These rights would also be adversely affected if inter alia, the Chairman or other members of OGRA are appointed though they are not eligible."
58. Thus a -vital linkage was established between fundamental rights of citizens and the appointment process to the regulatory authorities. With regard to autonomy the Supreme Court was of the view:--- "22. Thirdly the obvious has to be realized by the Executive in an earnest way. Vital autonomous institutions such as OGRA can function 'effectively and efficiently' only if their autonomy is respected. This is the letter as well as the spirit of the law. Such autonomy is only possible when appointments to key positions in these regulators are made in a demonstrably transparent manner; that is, by ensuring the implementation of the checks which the Ordinance lays down for such appointments."
59. Thus the appointment process was viewed in the context of the independence of the regulators and the Supreme Court of Pakistan was clear that unless the appointment process was transparent and free of influence, it was nave to expect the regulatory authorities to act independently and without pressure to be brought to bear on them.
60.It may be pertinent to mention that the- provision regarding the appointment of Chairman OGRA is in the same terms as the provision for the appointment of Chairman PEMRA and, therefore, the precedent of Muhammad Yasin is an apt citation for the purposes of the present case, as well.
With regard to the power to make appointments by the executive and the judicial review of those decisions by the courts, it was made clear that:--- "The power to make appointments in bodies such as OGRA is, by and large, the province of the Executive. Ordinarily, courts do not go into a detailed scrutiny of such matters. They defer to the Executive's discretion in the exercise of this power, if the commands of the Legislature have been complied with. However, the Court's deference, to the' Executive authority will last for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power."
61. Thus notwithstanding the power of the executive to make appointment as conferred by the law, courts will not be shy to exercise the power of judicial review to examine the integrity of the decision making process and that power is retained by the judicial branch under the Constitution.
In this regard, it was further held that:-- "[b]y now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled. Indisputably, if the action or decision . . . has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same".
The Ordinance does not state that the Federal Government may "in its absolute and unfettered discretion" appoint a Chairman. Quite to the contrary, the legislature, has specified measurable objective criteria which must be adhered to in making this appointment. It is equally clear that if the criteria prescribed by law are not met, any appointment made would be violative of the law and would, therefore, necessarily be subject to judicial review."
62. The Supreme Court of Pakistan then went on to lay down the test of the validity of the appointment process in the following words:-- "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."
63. Therefore, the first step in the entire process is to see whether an objective procedure was prescribed. In my opinion, none was prescribed in the instant case and the mere fact that 30 questions .were formulated by the Selection Board does not satisfy the test of an objective selection procedure for such a high post as the Chairman PEMRA. I have also no doubt in my mind that the selection procedure did not have a reasonable nexus with the object to the whole exercise starting from the eligibility criteria given in the advertisement. Further no record was produced so as to establish that the selection procedure was followed with objectivity, transparency and due diligence by the Selection Board which was a designated Selection Board and which, as adumbrated, was independently constituted and comprised of members who were also members of the authority under the PEMRA Ordinance. The aspect regarding the constitution of the Selection Committee was also alluded to in Muhammad Yasin and in that case, too, the process was found wanting and replete with irrationality and unreasonableness. It was held that the constitution of the committee was flawed and did not, fulfill the required criteria in the relevant field. In this regard, the following observations would be relevant for the purposes of the instant case as well and which are reproduced as under:- --
44. We also cannot help noticing that other relevant information such as non-inclusion of an "expert in the relevant field", necessary for enabling the Prime Minister to arrive at an informed decision was not included in the summary. In Suo Motu Case No.10 of 2009, (2010 SCMR 885), we have commented on the significance of a proper summary to ensure informed decision-making.
It is essential for Government servants entrusted with the responsibility of assisting in decision- making and governance to provide necessary information to the final decision-maker who in this case was the Prime Minister. Not disclosing crucial information relating to the Selection Committee or the respondent in the summary presented to the Prime Minister has further detracted from the integrity of the selection process and has subverted the same.
45. There are no minutes or notes to show the deliberations of the members of the Selection Committee which may suggest the basis or objective criteria for selecting the four names from amongst the 17 who were actually interviewed. However, it is evident from the record that all the short-listed candidates were interviewed on the same day. We do not have any indication as to the time spent on each interview, but since all 17 interviewees were statedly interviewed on 20-6- 2009, we can safely assume that not even 30 minutes were spent with each candidate. In these circumstances, it is difficult to see how the candidates who had submitted lengthy CVs, and were being considered for appointment to a major public office, could have been interviewed in any effective or meaningful way.
46. We may reiterate that we are presently engaged in examining the effectiveness of the selection process with the object of applying the test to determine if the process was (i) objective
(ii) had reasonable nexus with the object and (iii) was followed with rigour, objectivity, transparency and due diligence. In this context, for the purpose of evaluating the interview process we have some observations to make. Firstly, it is clear that since there was no suitability evaluation or other test involved, the interviews formed the primary, indeed sole basis of selection.
Moreover, the only material available before the interviewing panel was a candidate's self generated CV coupled with unverified testimonials. To make an assessment as to the rigour etc. of an interview for a Government position, we have an existing benchmark in the case of candidates seeking CSS appointments for relatively junior and lesser paid positions in BS-16 and BS-17. Those candidates who qualify in the highly competitive written CSS examination, are then evaluated in a number of sessions spread over a course of three days. Considering that the process now being examined by us was aimed at selecting the Chairman of one of the most important regulatory agencies in the country, one would expect equal if not greater diligence. In reality, the process adopted was, as described above, deficient and was not designed to achieve the objective of the law. Clearly it does not pass the test outlined above.
47. We can now advert to the interviews purportedly conducted by the Selection Committee. It is apparent from the record that they served no real purpose. There was merely an appearance of due process but, in reality, there was no rigour or due diligence discernable at all. The interviews had no clear nexus with judging the objective criteria required by the Ordinance and by the advertisement for the post i.e. determining (i) if the candidate was highly qualified (ii) whether he was a person of known competence (iii) if he was of known integrity. We make this observation based on the record and while remaining cognizant that the power of appointment is vested in the Executive.
64. From a reading of the paragraphs reproduced above it can be seen that the Supreme Court of Pakistan precisely dealt with the issues which afflict the selection process in this case as well. There was no proper summary before the Prime Minister to enable the Prime Minister to make the selection. In this regard reference may be made to rule 15(2) of the Rules of Business, 1973 which require a self-contained, concise and objective summary to be placed before the Prime Minster stating relevant facts and points for decision. No such summary was produced before this Court.
Also there are no minutes or notes of the deliberations of the members of the Selection Board which may give an inkling into the decision making process for selecting the three names out of the candidates for the approval of the Prime Minister. Further, no record has been produced which would shed any light on the respective academic qualifications of the candidates who appeared before the Selection Board and which were taken into consideration for the purposes of comparative analysis between the respondent No.4 and the other candidates, In short, the record is unfortunately lacking in any material particulars regarding the objective criteria followed by the Selection Board in order to show objectivity, transparency and due diligence. That aspect has also been referred to in Muhammad Yasin in considerable detail and goes to show that the Supreme Court of Pakistan was cognizant of the importance of this aspect as the main plank of the entire process.
65.Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCM R 1159) is the third and last case in the line of judgments which stated the basic principles to be followed in appointments of regulatory authorities. Muhammad Ashraf Tiwana reiterated with greater force the principles laid down in Muhammad Yasin and emphasized the need for following the rules delineated in that judgment so as to conform to the principles of transparency and meritoriousness. This was essential for maintaining independence of the regulatory authorities in order to enforce the fundamental rights enshrined in the Constitution. The power of the courts to look into the process of appointment and to judicially review them was emphasized in the following words:-- "It has by now become well settled that Courts will look into the process of appointments to public office. It is the process which can be judicially reviewed to ensure that the requirements of law have been met. In the case of Muhammad Yasin supra, the process of appointment to public office has been made the subject of judicial review to ensure adherence to the command of the law. This is also a requirement of good governance ..."
66.The need to observe the minimum standards required under the law and identified in Muhammad Yasin was affirmed in the following terms:--- "It should be clear that these practices are highly arbitrary, subjective and improper. Indeed, the standards of diligence and objectivity observed here fall well short of the minimum standards required, by section 5, and elaborately identified in precedents of this Court, including Muhammad Yasin's case."
67. It was noted that the Federal Government did not take arty steps to bring the appointment of the Chairman SECP in conformity with the standards given in Muhammad Yasin and which act of the Federal Government could not be condoned. It shows that the SECP was deeply aware of the needs of those standards to be made and in fact went so far as to hold that the existing appointments ought to be analysed afresh so as to remove any shortcomings in the process by which the appointments came about. In Muhammad Ashraf Tiwana the challenge related to the appointment of Chairman SECP and which was struck down by the SECP on the basis of its earlier holding in Muhammad Yasin and on the ground that the appointment fell short of the standards laid down in that precedent.
68. I shall now allude briefly to some of the literature which has evolved over the years and in which the importance of independent administrative agencies has been flagged as the foundational basis for independent regulatory framework. (I am indebted to Mr. Mohsin Mumtaz, Research Officer, Research Center of the Lahore High Court, Lahore for assistance and support in providing the material for the purpose).
69. In an Article read in a symposium by Aulana L. Peters entitled Independent Agencies: Government 's Scourge or Salvation? An independent regulatory agency has been defined as follows:-- "An independent regulatory agency is a government entity that frequently exercises executive, judicial and legislative power over a specifically defined area of government interest. In a word, independent agencies are the fourth branch of government, operating separately from but under the oversight or review of the other three. The SEC is a prime example of such an agency."
70. There is a significant amount of material produced by the Organization for Economic Cooperation and Development (OECD) on agencies, authorities and other government bodies.
OECD was set up pursuant to Article 1 of the Convention signed in Paris on 14th December 1960 and which came into force on 30th September 1961 and is required to promote policies designed:--- "to achieve the highest sustainable economic growth and employment and a rising standard of living in Member countries, while maintaining financial stability, and thus to contribute to the development of the world economy; -- to contribute to sound economic expansion in Member as well as non-member countries in the process of economic development; and - to contribute to the expansion of world trade on a multilateral, non-discriminatory basis in accordance with international obligations."
71.Another work was published by OECD under the responsibility of the Secretary-General of the OECD and deals with the governance of regulators, creating culture of independence. This is a practical guidance against undue influence and is grounded in the work of OCED Network of Economic Regulators (NER) which brings together over 80 regulators from across the world and sectors. The guidance is the culmination of the expertise and discussions of the OECD Network of Economic Regulators meetings and activities that were initiated in 2012. The report was circulated in April, 2017. Some of the salient features which may be referred to for our purposes are that:-- "It is important that regulatory decisions and functions are conducted with the upmost integrity to ensure there is confidence in the regulatory regime (OCED, 2014).
Objective, impartial and qualified "referees" are fundamental to ensuring that all "players" in any market. sector or environment are treated and behave correctly in accordance with the "rules" for the optimal outcomes."
72.One of the important features of a culture of independence of the regulatory authorities was the independence of leadership. In this regard. the following guidelines were given by the report:-- "The board or agency head of a regulator ultimately takes the decisions for which the regulator will be held accountable, and can be exposed to greater pressures than professional staff. As the government (executive and/or parliament) is responsible for the nomination and appointment of board members and agency heads, board members and heads can be closer (or at least have more intense relations with) the nominating and appointing authority, at least before they start their "tour of duty". The nomination process is a crucial juncture where the lack of transparency and accountability on the process and criteria leading to a nomination might create strong perceptions of undue proximity."
73. Reference may also be made to the guidelines for an Independent Regulatory Framework for Commonwealth Broadcasting Organizations, which was a report prepared following the meeting of law ministers of the Commonwealth in October, 2004, in which the ministers discussed a paper setting out the basic principles of the regulation of broadcast services. In respect of independent regulations, it was provided that:- "Independent Regulation
5. It is accepted best practice throughout the world that as an independent broadcasting industry develops, so too must an independent regulatory system to license and oversee this industry. The development of democracy requires the availability of a variety of sources of information and opinion so that the population can make informed decisions at times of elections. Through the world, television and radio are now the main sources of news and information. To enable open debate for the proper operation of democracy there needs to be a plurality of service provides to enable access of viewers and listeners to a wide range of sources of news and information.
Appointments and termination
16. Another key matter which - to comply with best practice - must be set out in legislation is the manner in which members of the regulatory authority are to be appointed, and the terms of their appointment, in such a way as to safeguard their independence.
17.There is no 'right' way to go about the appointment of members to a regulatory authority.
There are many different models, all intended to ensure the creation of an independent board.
Some examples are: --- to ensure that each major political party is equally represented on the authority's board; - to allocate a number of places (typically 3) to each of the President, the Parliament, and Government; -- to allocate nominations to certain sectors of civil society (e.g. the judiciary, academics, trade unions, churches, the professions), with final selections voted on in Parliament; -- to publicly advertise for members, and applicants to be short-listed and selected by civil servants, for final approval by Parliament; or - to apply strict qualifying criteria for applicants (e.g. business or legal experience, quotas based on ethnic minority, race or gender), with selection made by a representative group of senior politicians.
18. In each country, careful consideration has to be given to the mode of appointment - what process will deliver the best group of members who will be able to act independently, and will have the trust and respect of the industry, the general public, and politicians?"
74. It was emphasized that the rules of appointment should be clearly defined to product the members of the regulatory authorities from interference from political or economic forces:
75. Lastly, we may refer to the IMF Working Paper on Regulatory And Supervisory Independence And Financial Stability, March 2002. With respect to the role of independent agencies and for them to be outside political control, the following observations in the report are relevant:--- "On the other hand, the need for political independence has created a long-standing fear--- also part of the principal-agent discussion---that independent agencies would be outside political control, not be politically accountable, pursue their own agendas that may go against the agenda of the political majority in democratic regimes, or --- see above --- be captured by private interests. Some authors have branded independent regulators as the "fourth branch of government", implying that they were outside the control of the traditional three branches that, through checks and balances, keep mature democratic systems in equilibrium..." :-.Independent regulatory agencies are increasingly seen as a necessary component of modern regulatory governance, and as such, represent a sound improvement when compared to regulatory functions embedded in government ministries without clear mandates or objectives (OECD, 2000).
76.Institutional independence was found critical in relation to matters of appointments and dismissal of senior personnel and it was stated that:-- "The terms of appointment and---even more critically--dismissal of its senior personnel.
Independence is best served if there are clear rules on hiring and firing, which should depend on regulators' competence and probity, not on the decisions they reach. Under such rules regulators would enjoy security of tenure, enabling them to speak and take action without fear of dismissal by the government of the day. Ideally two government bodies--that is, government and parliament-- should be involved in the appointments process."
77. The above literature and extracts have been referred to simply to bring home the need for independent regulatory authorities and the degree to which international agencies have gone in laying down rules to be followed by member countries so that the administrative agencies are made free from political and executive influence as also from the influence of the other stakeholders in the sector which the agencies regulate.
78. Regulators and supervisors need a substantial degree of independence--both from the government and the industry--in order to fulfill their mandate and contribute to the achievement and preservation V of financial and democratic stability. It must be emphasized that there are imperatives posed by internationalization. Given the importance, complexity and growing internationalization of different specialized sectors, regulators need to be in position to adopt prudential rules and regulations quickly and flexibly to international best practice, in response to changing trends, conditions and dangers in the international marketplace. This is one argument which justifies regulatory independence so as to have an appropriate degree of autonomy in setting rules and regulations for the sector under its supervision.
79. In view of the above, the instant petition is allowed. It is declared that:- i. The appointment of the respondent No.4 (Mr. Absar Alam) as Chairman, PEMRA is without lawful authority and of no legal effect and hence void ab initio. ii. As a consequence, the notification of his appointment dated 11.11.2015 and 08.04.2016 is set aside and the position of Chairman, PEMRA is deemed to be vacant. iii. The position shall be filled and appointment made after adhering to a rigorous and transparent selection process undertaken with due diligence to accord with the standards and criteria indicated in the opinions of the Superior Courts; as well as the observations made in paragraphs 40 and 41 of this judgment; iv. The concerned Division of the Government of Pakistan shall, prior to a fresh appointment, draw up a set of rules to be followed in any future selection process. v. The Selection Board shall comprise of bipartisan and independent nominees/members; vi. Complete record of the appointment process shall be maintained and a comprehensive summary shall be submitted to the Prime Minister; vii. The process for fresh appointment shall be complied with all deliberate speed.