Shujaat Ali Khan, J: - Unnecessary details apart, the facts, forming factual canvas of the instant petition, are that the petitioner joined National Engineering Services Pakistan (Pvt.) Limited (NESPAK), as Engineer in the year 1979. He was appointed as Managing Director (M.D.)/Chief Executive Officer (C.E.O.) NESPAK, on 15.08.2013, for three years. Before expiry of his first term of three years, he was again appointed as M.D./C.E.O. NESPAK for second term of three years pursuant to recommendations of the Board of Directors (hereinafter to be referred as the Board) vide letter, dated 28.06.2016. Later on, Section Officer (Admn.) Government of Pakistan, Ministry of Water and Power, through Office Order, dated 10.04.2017 (the impugned Office Order), notified the retirement of the petitioner w.e.f. 09.04.2017, on attaining the age of superannuation. Aggrieved by the impugned Office Order the petitioner has filed the instant petition.
2. The arguments advanced by learned counsel for the petitioner can be summed up in the words that after appointment as M.D./C.E.O. NESPAK for second term for three years, the petitioner could not be terminated from the said post on account of superannuation; that according to the relevant rules the Board was the competent authority to take action against the petitioner but the impugned Office Order was issued by the Ministry of Energy thus the same was not sustainable; that the impugned Office Order was purportedly issued upon the approval of the Chairman of the Board but the said authority could not approve any action against the petitioner as the Chairman of the Board singly could not be considered as substitute of the Board; that according to the policy of the Federal Government the M.D./C.E.O. of a State owned company can be appointed till the age of 65 years; that as law permits appointment of a person as M.D. for second term the petitioner could not be terminated before expiry of said term; that retention of shares of M.D./C.E.O NESPAK by the petitioner till date is proof positive of the fact that he was not removed under due course of law; that in the past, M.Ds/C.E.Os. were allowed to serve the company beyond 60 years of age; that as there was no mention of superannuation in the recommendations of the Board regarding appointment of the petitioner for second term, he could not be terminated from the office of the M.D./C.E.O on account of superannuation; that admittedly salary of the petitioner was revised on 20.07.2017 and if he superannuated on 09.04.2017 there was no necessity for the competent authority to revise his salary package; that as the impugned Office Order has been issued by the Ministry of Energy the real contest is between the petitioner and respondent No.1 but while filing report and parawise comments respondent No.1 has copied those submitted by respondents No.3 & 4 which speaks volumes about collusion of respondent No.1 with NESPAK authorities against the interest of the petitioner; that according to section 198 of the Companies Ordinance, 1984, which was applicable at the time of appointment of the petitioner as M.D./C.E.O. NESPAK, for second time, statutory period of C.E.O. of a company is three years, thus, the petitioner could not be removed from his office before completion of his term; that criteria to remove C.E.O. of a company has been provided under section 202 of the Companies Ordinance, 1984 but the same was not followed at the time of issuance of the impugned Office Order; that as a matter of fact the petitioner was politically victimized inasmuch as the impugned Office Order was issued by the Ministry of Energy on the directions of the then Prime Minister of the country who otherwise had nothing to do with the affairs of NESPAK; that as the M.Ds./C.E.Os. of various other companies have been allowed to serve beyond the age of superannuation it is clear case of discrimination; that the impugned Office Order also offends against judgment, dated 30.07.2013, rendered by the Apex Court of the country in Civil Petition No.937/2013; that the impugned Office Order cannot sustain in view of section 202 of the Companies Ordinance, 1984 read with Article 45 of the Memorandum of Association of NESPAK; that the impugned Office Order was purportedly issued by the Section Officer at the behest of Ministry of Energy but the said authority being alien to the hierarchy of NESPAK had no authority to issue impugned Office Order; that mala-fide on the part of the respondents is also established from the fact that they have issued fresh advertisement for appointment against the post of M.D./C.E.O. NESPAK just to accommodate one consultant of M/s Habib Rafiq Construction Company which is owned by a person having close relation with the persons at the helm of affairs in the previous regime; that the impugned Office Order also offends against the spirit of decision, dated 21.05.2013, passed by the august Supreme Court of Pakistan, rendered in C.M.A. No.2386 of 2013 in CMA No.1564 of 2013; that the members of the present Board are being used for preparation of anti-dated documents to malign the petitioner; that if the termination of the petitioner was ratified by the Board on the grounds other than that mentioned in the impugned Office Order it could have incorporated those grounds in the minutes of the relevant meeting but as the respondents could not bring on record anything adverse against the petitioner , the Board purportedly simply ratified the decision due to the pressure exerted by the then Prime Minister; that inconsistent attitude of respondents No.3 & 4 is manifest from the fact that on the one hand they have taken the objection that this petition is not maintainable in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 but on the other have dubbed NESP AK as a private limited company; that according to the law laid down by the Apex Court of the country in the case reported as Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114) when the foundation of an act is void ab initio the superstructure raised on the basis thereof cannot sustain; that on the one hand respondents No.3 & 4 are of the view that terms & conditions of service of the petitioner were governed under NESP AK Employees Service Rules, 1973 but on the other , in the report and paraw ise comments, they have relied upon various policies of the Federal Government; that admittedly penal order against the petitioner was passed on the initiative of the then Chief Minister Punjab despite the fact that NESP AK being a federal entity , the provincial authorities had no role in its functioning; that on number of occasions the Apex Court of the country has held that the government, either Provincial or Federal, has no role in the affairs of NESP AK but the impugned Office Order speaks volumes about the fact that respondents have scant regard to the verdicts of the Hon'ble Supreme Court of Pakistan despite the fact that they have binding force upon all the organs of the State including the respondents in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973; that the impugned Office Order also offends against the provisions of Article 8 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 199 of the Companies Ordinance, 1984 and Article 45 of the Memorandum of Association of NESP AK; that case of the petitioner is also covered under the principles of locus poenitentiae and legitimate expectancy; that had the petitioner been aware about the fact that he was to serve till his age of superannua tion perhaps he might have not accepted his appointment as M.D./C.E.O. NESP AK for second term as he, being a technocrat, could join any other institution. Relies on Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas (PLD 2014 SC 471) and Crescent Sugar Mills & Distillery Ltd., Faisalabad v. central Board of Revenue, Islamabad and 2 others (PLD 1982 LHR 1 ).
Further , in support of his stance that impu gned Office Order was issued as a result of political motivation, learned counsel has produced copy of communi cation, dated 22.03.2017, addressed by Mr. Fawad Hassan Fawad, the then Secretary to the Prime Minister to the Secretary W ater & Power etc.
3. Mr. Saad Rasool Advocate, representing respondents No.3 & 4, while defending the impugned Office Order, states that after ratification of the impugned Office Order by the Board respondents No.3 & 4 are the real contestants, thus, the petitioner cannot take any premium on the ground that the report and parawise comments filed by respondent No.1 are copy of those filed by respondents No.3 & 4; that the query raised by this Court in order, dated 14.12.2017, has not been responded by the petitioner till date; that, as a matter of fact, the petitioner being favourite child of the previous government was appointed as M.D./C.E.O. NESPAK upon recommendations of the then Speaker, National Assembly, namely, Mr. Ayyaz Sadiq, thus, he has no cheeks to plead that his removal was politically motivated; that as the petitioner was appointed M.D./C.E.O. NESPAK in utter disregard to the law on the subject, the same was rightly revoked by the Board; that bona fide of NESPAK authorities is apparent from the fact that proceedings have already been initiated against the persons involved in illegal appointment of the petitioner as M.D./C.E .O. NESP AK without publication of adve rtisement in the national press; that as the petitioner has approached this Court with unclean hands he is not entitled to equitable relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that as the impugned Office Order was ratified by the Board, no exception can be taken against the respondents on the ground that the termination order was issued by an incompetent authority; that as the petitioner has not incorporated even a single ground in this petition regarding political victimization, his oral assertion cannot be entertained at this stage; that the Board enjoys unfettered powers to terminate the M.D./C.E.O. NESP AK as per criteria laid down under section 202 of the Companies Ordinance, 1984; that as per NESP AK Employees Service Rules, 1973 superannuation age for all employees, including the M.D./C.E.O, is 60 years, the petitioner could not be allowed to claim retention as M.D./C.E.O. NESP AK despite attaining the age of superannuation; that untoward conduct of the petitioner is apparent from the fact that he removed various items from M.D. House, DHA Lahore to his own house without knowledge/permission of the Board, proof positive whereof is that after unearthing of his illegal act he showed his readiness to purchase the articles according to their book value; that as the petitioner , in connivance with the members of the previous Board, committed grave illegalities resulting into colossal loss to NESP AK, respondent No.2 committed no illegality while issuing the impugned Office Order; that with a view to save personal prestige of the petitioner , as per his request, the Board instead of terminating his services with promptitude waited till the age of his superannuation, thus, the petitioner was estopped to challenge the impugned Office Order; that after repeal of the Companies Ordinance, 1984, future events in NESP AK are to be governed under the Companies Act, 2017 and according to section 187(4) of the said Act government has the power to appoint/remove M.D./C.E.O. of a company , thus, the petitioner , even in case of his success in this petition, would not be in a position to rejoin as M.D./C.E.O. NESP AK against wishes of the government; that mala-fide on the part of the petitioner is manifest from the fact that he instead of promptly challenging the impugned Office Order waited for five months before filing this petition; that as a matter of fact after withholding of his terminal benefits by NESP AK, due to pendency of different inquiries against him, the petition er opted to file this petition just to use it as a pressurizing leverage; that after applying for payment of terminal benefits the petitioner was estopped to file this petition; that as the petitioner was serving in NESPAK as Engineer for the last three decades he could not claim himself to be a technocrat; that as the Ministry only recommended the removal of the petitioner from the post of M.D./C.E.O. NESPAK no exception can be taken against the impugned Office Order especially when the same was ratified by the Board; that members of the present Board, after coming to know about the illegalities committed by the petitioner towards awarding of contracts at lower rates as compared to market, has already initiated criminal as well as departmental proceedings against him; that upon having knowledge about misconduct on the part of the petitioner as M.D./C.E.O. NESPAK, the then Chief Minister, Punjab referred the matter to the then Prime Minister of the country and as a result of the said move the petitioner was removed from the post of M.D./C.E.O. NESPAK; that it is of common knowledge that the subsequent decision of the Board approves/rescinds its earlier decision and the simply ratification of the impugned Office Order by the Board in its 143 Meeting was supplemented with additional grounds in subsequent Meetings thus the termination of the petitioner on account of superannuation stood merged in the subsequent decision s of the Board; that if for the sake of academic discussion and without conceding it in any manner it is presum ed that respondent No.2 could not retire the petitioner on account of superannuation, the Board could ratify the Impugned Office Order in subsequent meeting as has been done in the case of the petitioner; that while removing the petitioner , procedure laid down under section 202 of the Companies Ordinance, 1984 was followed in letter and spirit; that as per the repealed Companies Ordinance, 1984 as well as the Companies Act, 2017, M.D./C.E.O. of a Company can be removed either by 3/4 majority of the members of the Board or through special resolution ; that during tenure of the petitioner as M.D./C.E.O. NESP AK, 900 appointments were made by him on account of political pressure regarding which his Personal Staff Officer maintained list containing the names of the appointees and those who recommended them and that since neither the government nor the Board is interested to retain the petitioner as M.D./C.E.O. NESP AK the sought for relief cannot be granted. In support of his contentions, learned counsel has relied upon report of the In-house Inquiry Committee regarding regularization of contract employees by the petitioners, report of Fact Finding Inquiry Committee and copy of the application submitted by the petitioner for payment of Provident Fund, Gratuity and Leave Encashment.
4. Mian Irfan Akram, Deputy Attorney General, representing respondents No.1 & 2, in addition to adopting the arguments advanced by the learned counsel representing respondents No.3 & 4, states that since before expiry of his second term as M.D./C.E.O. NESP AK the petitioner reached the age of superannuation he was rightly retired by respondent No.2. When confronted with the query as to under which law the Ministry of Energy had the power to remove M.D./C.E.O. NESP AK, learned Law Of ficer has answered in negative.
5. In rebuttal, learned counsel for the petitioner , while producing a statement showing the dates of birth of previous M.Ds./C.E.Os. NESP AK, their age of superannuation and termination from the said post, argues that according to learned counsel representing respondents No.3 & 4 there was only one exception where M.D./C.E.O. NESP AK was allowed to serve beyond the age of superannuation but the said assertion stands negated from the fact that certain other persons mentioned in the statement were allowed to continue beyo nd their age of superannuation; that according to the Companies Ordinance, 1984 statutory period of contract of M.D./C.E.O. NESPAK is three years but the respondents with a view to distort the interest of the petitioner are relying on NESPAK Employees Service Rules, 1973 which being subordinate legislation cannot be given precedence over the parent enactment; that according to the documents, available at Page No.65 of the report and parawise comments filed by respondent No.3, the post of M.D./C.E.O. NESPAK does not figure there; that as a matter of fact terms & conditions of service of M.D./C.E.O. NESPAK are governed under NESPAK Chief Executive Service Rules, 1977, thus, the petitioner could not retire from service upon attaining the age of superannuation; that the document available at Page No.61 with the report and parawise comments affirms the fact that the petitioner was removed from service prior to ratification of the impugned Office Order by the Board; that a glance over the Minutes of Meeting of the Board, wherein termination of the petitioner was purportedly ratified, shows that the total number of members did not participate in the meeting only for the reason that they were not ready to support the impugned Office Order illegally issued by the Ministry of Energy; that as the petitioner was appointed for second term as M.D./C.E.O. NESPAK, under the provisions of the Companies Ordinance, 1984, the Companies Act, 2017 having prospective effect cannot be applied retrospectively to the disinterest of the petitioner; that the present M.D./C.E.O. NESPAK, who is involved in criminal cases as well as proceedings before NAB, is preparing anti- dated documents just to protect the illegal Office Order issued by the Ministry; that as the Minutes of Meeting, referred by learned counsel for respondents No.3 & 4, were not in the knowledge of the petitioner same were not referred in this petition; that the falsity of the allegations regarding removal of certain items by the petitioner from M.D. House, DHA, Lahore is established from the fact that the Board in its 137 meeting, held in the month ofrd th th December, 2013, decided to sell the said house as a result the items, referred by learned counsel for respondents No.3 & 4, were shifted by NESPAK authorities to the house of the petitioner; that as the articles in question have already been received back by NESPAK authorities, no adverse inference can be drawn against the petitioner on the said count; that as per second Note under rule 6 of NESPAK Chief Executive Service Rules, 1977 the petitioner was entitled to purchase the items on the basis of their book value, thus, no illegality was committed by him while submitting application in that regard; that the petitioner is not denying the fact that while serving as M.D./C.E.O. NESPAK he applied for payment of Gratuity and Provident Fund just for the reason that the same stands discontinued upon attaining the age of superannuation by an employee of NESPAK, thus, the same could not be equated with terminal benefits as M.D./C.E.O. NESPAK; that according to Minutes of 144 Meeting of the Board, certain inquiries were initiated against the petitioner on the direction of the Prime Minister of the country, thus, political victimization of the petitioner is established from the record; that according to own showing of the respondents the inquiry committee recommended penalty of censure against the petitioner, thus, the findings of said inquiry committee could not be used as an edifice to terminate the petitioner from the office of M.D./C.E.O. NESPAK; that the allegation of illegal appointments by the petitioner is not tenable for the reason that the petitioner made all appointments after fulfilling requisite codal formalities; that as the petitioner was not associated in any of the proceedings, allegedly initiated against him by the present Board, no exception can be taken against him on said score and that mala-fide on the part of the respondents is manifest from the fact that the persons inferior in rank to the petitioner have been appointed as inquiry officers regarding which the petitioner came to know during proceedings in this petition and that as the petitioner has already been given clean chit by National Accountability Bureau (NAB) no adverse opinion can be formed against him mere on account of initiation of proceedings by the NAB. Further, in support of his contentions, learned counsel has placed on record copy of application, dated 29.03.2017, submitted by the petitioner for payment of Provident Fund and Gratuity, statement showing names of the previous M.Ds./C.E.Os. NESPAK with their respective dates of birth, superannuation and tenure of their service and letter, dated 03.11.2017, addressed by the Manager Administration NESPAK to the petitioner.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition as well as those submitted by the respondents along with the report and parawise comments in addition to the case-law cited at the bar .
7. A perusal of the impugned Office Order shows that the petitioner was terminated from the post of M.D./C.E.O. NESP AK on account of his superannuat ion. While defending the impugned Office Order , learned counsel for respondents No.3 & 4 has referred to Rules 73 & 84 of the NESP AK Employees Service Rules, 1973, according to which age of superannuation of employees of NESP AK, is 60 years. Perhaps, learned counsel appearing on behalf of respondents No.3 & 4 have relied upon said Rules in utter disregard to the fact that admittedly the terms & conditions of service of the petitioner were governed under NESP AK Chief Executive Service Rules, 1977 wherein there is no stipulation regarding retirement of the M.D./C.E.O. on reaching the age of superannuation, thus, he could not be terminated on account of superannuation while relying upon NESP AK Employees Service Rules, 1973.
Considering from another angle, a cursory glance over the Minutes of 141 Meeting of the Board shows that at the time of reappointment of the petitioner as M.D./C.E.O. NESPAK for second term the competent authority viz. the Board was well aware about the fact that at the time of expiry of his first tenure as M.D./C.E.O.
NESPAK the petitioner was 59 years and 4 months of age. Reference in this regard can be made to the following portion of the Minutes of 141 Meeting of the Board: "The Board was informed that the case for reappointment of present Managing Director for another term of three years is being placed before them for consideration which is in line with the provision of Companies Ordinance as well as Government Policy which enables the Chief Executive to get another term or terms upto the age of 65 years whichever is earlier. However, Mr. Amjad Ali Khan would attain the age of 59 years & 4 months on the expiry of his present term and is eligible for another term of three years."
(emphasis provided).th st st If appointment against the post of M.D./C.E.O. NESPAK, for second term, was till the age of superannuation, the petitioner could not be re-appointed. Further, in its meeting wherein the petitioner was recommended for appointment against the post of M.D./C.E.O. NESPAK for the second term of three years, the Board specifically referred to the Companies Ordinance, 1984 as well as other government policies regarding the age of M.D./C.E.O. of a government owned company. Moreover, according to section 198 of the Companies Ordinance, 1984, M.D./C.E.O. of a Company is to be appointed for three years, thus, respondent No.2 acted mala fidely while issuing impugned Office Order regarding termination of the petitioner from the post of M.D./C.E.O. NESPAK on account of his superannuation.
The Hon'ble Supreme Court of Pakistan, while deciding C.M.A. No.2386 of 2013 in CMA No.1564 of 2013 determined the procedure to be followed for appointment against the post of of M.D./C.E.O. NESP AK, with specific reference to Article 45 of the Articles of Association read with sections 198 & 199 of the Companies Ordinance, 1984 relevant portion whereof reads as under: - "3. It may be noted that NESPAK is a Company incorporated under the Companies Ordinance, 1984. Therefore, it has to be governed in accordance with its Articles of Association and the Companies Ordinance. Article 45 reproduced above makes it abundantly clear that the Chief Executive is to be appointed by the Directors of the Company in accordance with the provisions of Sections 198 & 199 of the Companies Ordinance. It may well be that the Government owns 100% of the shareholding of NESPAK. Under the law and by virtue of its shareholding, the Government has the authority to appoint Directors of NESPAK. Therefore, it is the job of the Directors to appoint the Chief Executive of the NESPAK. If in the past the Ministry of Water & Power has been interfering in the appointment of the Chief Executive, this appears to be contrary to the provisions of the Articles of Association as well as Section 198 & 199 of the Companies Ordinance referred to hereinabove. It also appears that the very object of creating a separate/autonomous limited liability company was to ensure that in the internal management of the Company, there is no direct governmental interference. Nonetheless the past practice of the Government cannot override the express statutory provisions or the provisions of Article 45 of the Articles of Association reproduced above.
4. Mr. Arshad Mehmood, Deputy Secreta ry, Ministry of Water & Power has appeared and has placed on record a copy of decision of the Cabinet dated 10.01.2004 for ease of reference same is reproduced herein below:- "No appointment should be made on Board of Directors of any organization/company/ corporation under the administrative control of Ministries/Divisions without seeking formal approval of the Prime Minister"
The Deputy Secretary stated that the appointment of the Chief Executive NESP AK was to be made pursuant to the above decision of the Cabinet. This submission does not reflect a proper understanding of the above noted legal position as per law or Articles of Association. The Cabinet decision merely sets out the process whereby the Government as sole shareholder of NESP AK is to appoint the Directors on the Board of NESP AK, thereafter; it is for the Board to appoint the Chief Executive terms of Article 45 of the Articles of Association, reproduced above. Direct nomination/ appointment of Chief Executive NESP AK by the Government amounts to interference in its indoor management and appointment of Chief Executive of NESP AK. The past practice, therefore, being volative of the Articles of Association and of the Companies Ordinance, cannot be condoned.
5. The Board shall of course, proceed to act in accordance with law and make the requisite appointment of Chief Executive in accordance with the law and Articles of Association of the Company. The C.M.A., therefore, stand disposed of in these terms." (emphasis provided)."
If the impugned order is considered on the touchstone of the afore-quoted verdict of the Apex Court of the country it becomes crystal clear that the same was issued in utter disregard to the aforesaid decision.
8. While controverting the stance of the learned counsel for respondents No.3 & 4 that only to the exclusion of one M.D./C.E.O all previous M.Ds/C.E.Os. stood retired on attaining the age of superannuation, learned counsel for the petitioner has produced a list containing the names, dates of birth, dates of superannuation and dates of their retirement as M.Ds./C.E.Os. NESP AK contents whereof are reproduced herein below: - Sr.
NoName D.O.B Tenure Date of Superannuation 1 Sh. 26.07.192302.08.1974 - 31.12.1983 26.07.1983 Irshad 9 Years Ahmad 2 Brig (R) 9.8.1926 1.1.1984 - 31.12.1986 09.08.1986 I.R. 3 Years Shariff 3 Amjad 25.10.1936 1.1.1987 - 31.12.1994 25.10.1996 M. Agha 8 Years 4 Iftikhar 1.1.1995 - 19.06.1998 Resigned Khalil 2-1/2 Years 5 Asif 26.11.1998 - 03.11.2001 Saleem 2 Years 1 1 months 6 Sabir P. 05.11.2001 - 25.06.2004 Chohan 2 Years 8 Month 7 Dr. 28.03.194526.06.2004 - 27.03.2005 28.03.2005 Amjad 9 Months Pervaiz 8 Karamat 12.10.194806.04.2005 - 05.04.2009 12.10.2008 Ullah Ch. 4 Years 9 Asad I.A.05.04.1954 07.04.2009 - 15.08.2013 05.04.2014 Khan 4 Years From above statement, it is abundantly clear that persons mentioned at Sr.No.1,2 & 8 continued as M.D./C.E.O NESP AK even after attaining the age of superannuation. Though learned counsel representing respondents No.3 and 4 assured the court to verify the antecedents of above persons but he did not turn up meaning thereby that prima facie contents of the list reproduced above are correct. In this scenario, not only the assertion of the learned counsel for respondents No.3 and 4 that in the past only one M.D./C.E.O. NESP AK was allowed to continue against the said post despite reaching the age superannuation stands falsified but also it stands proved that respondents No.3 and 4 did not brief their counsel properly seemingly with the intent to mislead the court.
Since a number of previous M.Ds./C.E.Os. NESP AK were allowed to continue against the said post despite their reaching the age of superannuation but the petitioner was removed from the office of M.D./C.E.O. NESP AK on account of his superannuation, it is a case of sheer discrimination which is prohib ited in view of the provisions of Article 4 & 25 of the Constitution of Islamic Republic of Pakistan, 1973. While highlighting the importance of shield provided in the Constitution of Islamic Republic of Pakistan, 1973 against any kind of discrimination, the apex court of the country in the case reported as Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47 ) has inter-alia observed as under: - "28. An overview of the judgments reproduced or referred to herein above leaves little room for doubt that it is now a well-settled principle of law that all public functionaries must exercise public authority , especially while dealing with the public property , public funds or assets in a fair, just, transparent and reason able manner , untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens............."
9. Admittedly , affairs of NESP AK, being company , were governed under its Memorandum and Articles of Association. As per Article 45 of the Memorandum of Association, M.D./C.E.O. was to be appointed under section 198 read with 199 of the Companies Ordinance, 1984, thus, neither respondent No.2 nor the Board could be allowed to alter terms & conditions of service of the petitioner in utter disregard to the provisions of the Companies Ordinance, 1984. Moreover , I am unable to understand that how the rules framed by the Board for internal functioning of the NESP AK could be preferred over the provisions of the parent Statute viz. the repealed Companies Ordinance, 1984 and other relevant enactments.
10. It is very strange to note that during the course of arguments learned counsel representing respondents No.3 & 4 has pleaded with vehemence that terms & conditions of service of M.D./C.E.O. NESP AK were to be determined by the Board but the said assertion stands nullified from the contents of report and parawise comments wherein not only a reference has been made to number of policies of the government towards appointment of M.D./C.E.O. of a government owned company but have also placed reliance thereon. Relevant portion from the report and parawise comments filed by respondents No.3 and 4 are reproduced herein below for ready reference:- "12. That it is essential to note that Cabinet Division' s D.O. letter dated 9 October 2007, bearing No.6/12/2007/RA-1 (hereinafter the "Government Policy", copy of which has been attached herewith as Annexure C) standardized the terms of appointm ent and age limits of chairman/memb ers of government regulatory authorities, corporations, autonomous bodies, commissions etc., and directed compliance of the same. Pertinently , the Government Policy was referred to by the Board of Directors/BOD of Respondent No.3 in its 141th Meeting on 27 June, 2016.
13. That the terms of the Government Policy were endorsed by Respondent No.3/NESP AK, pursuant to the issuance of circular dated 26 April, 2016, bearing No.F.NO.T A.10(1)/2015.Admn (hereinafter the "Circular dated 26.04.2016", copy of which has been attached herewith as Annexure D), which expressly directed, inter alia, to take "further necessary action" concerning the applicability of the Government Policy .
14. That the term and age limit for the provision of services by a Managing Director/Chief Executive of Respondent No.3 was governed in accordance with National Engineering Services Pakistan (Pvt.). Limited Chief Executive Service Rules, 1977 (hereinafter "1977 Rules", a copy of which have been attached herewith as Annexure E), as well as National Engineering Services Pakistan (Pvt.) Limited Employees Service Rules, 1973 (hereinafter "1973 Rules", a copy of which have been attached herewith as Annexure F) .
17. That furthermore, the Securities and Exchange Commission of Pakistan (SECP) issued the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 (hereinafter the "2015 Guidelines", copy of which has been attached herewith as Annexure-I), which also codifies the procedure and manner for appointment of a Chief Executive of public sector company . Specifically , Guideline No.2(1) of the 2015 Guidelines allows companies to "appoint its chief executive" in accordance with the procedure specified in Schedule-I of the 2015 Guidelines, and Guideline No.2(2) of the 2015 Guidelines directs every company to "ensure that the articles of association of the company state the terms and conditions of appointment of its chief executive."
In the presence of such unequivocal references and reliance by respondents No.3 and 4 on the policies/guidelines issued by various quarters from time to time, in their report and parawise comments, oral assertion of learned counsel representing respondents No.3 & 4 that as the Board was competent to determine/alter the terms & conditions of service of M.D./C.E.O. NESP AK, including the age, does not carry any weight especially when the policies/guidelines referred by respondents No.3 & 4 permit continuation of M.D./C.E.O. of a State owned company till the age of 65 years.
11. While highlighting alleged omissions and commissions on the part of the petitioner , learned counsel representing respondents No.3 & 4 has argued that as the petitioner was found involved in theft of articles purchased for M.D. House, DHA, Laho re, he was rightly removed from the office of M.D./C.E.O. NESP AK.
Perhaps, learned counsel has raised such plea in oblivion of the fact that according to second Note under rule 6 of NESP AK Chief Executive Service Rules, 1977 the Chief Executive has the option to purchase furnishings at book value. The relevant part of the referred Rule is reproduced herein below: - "Note: The furnishings will become the property of the Chief Executive after five years of their provision. If the Chie Executive leaves Company service before five years, he will be allowed to purchase the furnishings, at book value."
Moreover, according to the Minutes of the 140 Meeting of the Board besides other items the matter regarding sale of M.D. House, DHA, Lahore also came under discussion. While dealing with the said question the Board inter-alia observed as under: -th th th th "The Managing Director informed the Board that NESP AK had purchased a furnished residential property located 217, Block-U, Defence Housing Authority , Lahore in July, 2009 at a cost of Rs.41.50 million for the former Managing Director as his residence.
During the 137 Meeting of the Board of Directors (BOD) held on December 21, 2013 the Board decided that the above property may be sold out after adopting due procedures.
As directed by the BOD the Management constituted a Committee of Senior Executives of NESPAK for the sale of NESPAK property and instructed to follow PPRA procedure. The Committee held the various meetings wherein deliberations were made on the legal formalities and it was decided to prepare a Valuation Report of the property and also seek legal advice from NESPAK Legal Advisers, M/s Zafar and Associates. The legal/tax Advisor informed the Committee that as per FBR rules, this sale would be considered as an auction and additional 10% advance income tax will be levied to the buyer. The price as per Valuation Report was Rs.61.5 Million.
The Committee held series of meetings whereby it was decided to advertise the sale of the above property as per reserve price quoted in the Valuation Report. Accordingly , advertisements were published in newspapers on (i)
November 30, 2014 (ii) January 25, 2015 (iii) February 15, 2015 and (iv) October 04, 2015" (emphasis provided)
From above, it is abundantly clear that the Board decided to sell the M.D. House on 21.12.2013, thus, the assertion of the petitioner that after putting the M.D. House for sale the NESPAK authorities themselves shifted the furnishing items in question to his house, has due worth. Further, it is not believable that the petitioner shifted the articles in question forcibly without the knowledge of the competent authority especially when different persons were deputed for their maintenance and safe custody.
12. During the course of arguments, learned counsel for the petitioner urged that as the acclaimed removed articles were received back by the NESP AK authorities the said fact cannot be used to defend the impugned Office Order .
In support of his contention, learned counsel has referred to communication, dated 03.11.2017, addressed by Mr. Nadeem Arshad, Manager Administration, NESP AK to the petitioner operative part whereof reads as under: - "Miscellaneous items of MD House (217-U, DHA, Lahore) were returned to NESP AK on two occasions by your representative Mr . Sajid Baig Mirza in presence of our Manager General Services on the following dates: -
1. October 17, 2017 (copy attached as Exhibit-A)
2. October 25, 2017 (copy attached as Exhibit-B)
The afore-quoted portion from the communication addressed by the Manager Administration to the petitioner conspicuously clears that most of the items, which were allegedly removed by the petitioner from MD House, D.H.A. Lahore, were received back by the NESP AK authorities, thus, the petitioner could not be proceeded against on the basis of said fact.
13. Now coming to the contention of learned counsel representing respondents No.3 & 4 regarding estoppel against the petitioner on account of submission of application for payment of terminal dues, I am of the view that as Gratuity and Provident Fund become payable on reaching the age of superannuation by a public servant the petitioner submitted application for payment of said dues, thus, it cannot be considered as application for terminal dues against the post of M.D./C.E.O. NESP AK especially when the petitioner was not appointed as M.D./C.E.O.
NESP AK from outside rather he was serving in NESP AK at the time of his appointment as M.D./C.E.O. NESP AK for the first time as well as for the second time.
14. Amazingly , in the impugned Office Order a reference has been made to the decision of the Chairman of the Board regarding retirement of the petitioner on account of superannuation. According to own showing of the respondents the Board had sole power to appoint/terminate M.D./C.E.O. NESP AK but issuance of impugned Office Order by respondent No.2 smacks mala-fide on his part. The malice and colourful exercise of powers by respondent No.2, as a result of the political pressure, is also apparent from the contents of the communication, dated 22.03.2017, addressed by Mr. Fawad Hassan Fawad, the then Secretary to the Prime Minister to the Secretary , Government of Pakistan, Ministry of Water & Power , Islamabad which for convenience of reference is reproduced herein below:- "PRIME MINISTER'S OFFICE ISLAMABAD Subject: FACT FINDING INQUIR Y REPOR T-PERFORMANCE OF MANAGING DIRECT OR NESP AKth
9. On the orders of the Prime Minister at para 8 of the summary an inquiry was conducted by a two member Committee comprising Mr. Shahid Ashraf Tarar, Chairman NHA and Dr. Aami r Ahmad, Additional Secretary , Ministry of Commerce. A fact finding report has now been received in the matter , which is placed at Annex.A.
10. The Prime Minister has seen and is pleased to approve the recommendations of the Committee, given at para 7 of the instant report. Further, he is pleased to direct that, notwithstanding any orders, decisions or contracts to the contrary at the level of NESPAK, its board or any Division, Mr. Amjid Ali, MD NESPAK should retire from service on the date of his superannuation i.e. 9 April, 2017.
11. Further, necessary action may be taken forthwith.
Sd/- (Fawad Hasan Fawad)
Secretary to the Prime Minister 22.03.2017"
After going through the contents of the above-quoted communication even a person of ordinary prudence would reach the conclusion that removal of the petitioner from the post of M.D./C.E.O. NESP AK was politically motivated, thus, the same was not sustainable.
15. It is of common knowledge that NESPAK being a federal entity , the Provincial Government, including the Chief Minister , has no power to interfere in its affairs but addressing of communication, dated 05.12.2016, maligning character of the petitioner alongwith other officers/of ficials of NESP AK, by the then Chief Minister , Punjab, to the then Prime Minister of Pakistan stands proof of the fact that all the proceedings initiated against the petitioner were result of political move initiated by his adversaries who had an axe to grind against the interest of the petitioner for the reason that he refused to succumb to their illegitimate demands. The communication, under discussion, inter alia contain following averments:- "4. NESP AK management, after delaying the matter for months and on insistence of client, initiated an inquiry in September 2016 and fixed responsibility on lower level officials. A number of people directly involved in preparation of fake construction record and payments were not even inquired. On coming to know that Government is considering initiating criminal proceeding against the contractor and NESP AK staff, MD NESP AK has also reportedly lodged a complaint in police in first week of November . Such a callous attitude towards a project of national importance cannot be accepted. " (emphasis provided)
According to the highlighted portion of the afore-quoted extract from the communication addressed by the then Chief Minister to the Prime Minister it is evident that the petitioner , after coming to know about certain omissions and commissions on the part of the officers/of ficials of NESP AK, initiated proceedings against them. Had the petitioner was part of the group of officers/of ficials of NESP AK involved in unethical activities, there was no compulsion for him to lodge criminal case against the hoodlums.
16. During the course of arguments, learned counsel representing respondents No.3 & 4 has took categorical stance that as the petitioner was supposed to serve the company till his superannuation he had no cheeks to challenge his termination from the post of M.D./C.E.O. NESPAK. In support of his contentions, learned counsel has referred to an advertisement floated by NESPAK authorities for recruitment against different posts, including M.D./C.E.O. NESPAK.
It is not the case of the respondents that the provisions of sections 198 & 199 ibid are not applicable to the case of the petitioner rather their case is that the Board has decided that in future the maximum age of M.D./C.E.O.
NESPAK would be 60 years. This Court has least concern about the powers of the Board to change the selection criteria of M.D./C.E.O. NESPAK, however, the said power of the Board is subject to provisions of the parent statute viz. repealed Companies Ordinance, 1984 and the Companies Act, 2017. As the petitioner was re-appointed as M.D./C.E.O. NESPAK for second term under the provisions of Companies Ordinance, 1984 his rights and obligations were to be governed under the said Statute and any enactment promulgated, later on, could not be made operative retrospectively to his disinterest. The Hon'ble Supreme Court of Pakistan while dealing with somewhat similar question in the case of Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43 ) has inter-alia held as under: -th "11. That the Act was enacted, "to provide for the establishment of the office of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, redres sing and rectifying any injustice done to a person through maladministrat ion suppress corrupt practices and to ensure good governance" (the first preamble of the Act). The Provincial Ombudsman has been empowered to investigate maladministration (section 9), therefore, to ensure that the watchdog status of the Ombudsman is not comprom ised and he does not succumb to pressure the legislature in its wisdom provided statutory protection to the person holding the office of Provincial Ombudsman and envisaged his/her removal only if he/she was guilty of misconduct or was physically or mentally incapacitated to perform his/her duties as provided in sub section (2) of section 6 and its proviso. The appellant was appointed as the Provincial Ombudsman for a period of four years and no step for removal of the appellant was taken pursuant to subsection (2) of section 6, therefore, he must be allowed to continue to hold the office till the expiry of such term. The amendment made to section 4 does not contain any element whereby the appointment of the appellant as a Provincial Ombudsman was revoked, repealed, withdrawn or cancelled; the silence of the legislature in this regard is significant. Therefore, in the absence of legislation, the tenure of the appellant cannot be curtailed in the exercise of administrative powers, but, unfortunately , the same was purported to be done by the first impugned Notification. The Act grants security of tenure to the office of the Ombudsman and it cannot be undone by the Government as such power the legislature in its wisdom has not conferred upon the Government.
Consequently , the first and second impugned Notifications are declared to be in contravention of the Act, illegal, without jurisdiction and of no legal effect. The appellant will continue to hold the office of the Provincial Ombudsman for a period of four years which shall commence from the date he took the oath of office of the Provincial Ombudsman Khyber Pakhtunk hwa pursuant to notification dated 29th December , 2010. Resultantly , the purported appointment of respondent No. 4 as Provincial Ombudsman, at a time when the appellant was holding such office, is also declared to be illegal, without jurisdiction and of no legal effect."
The afore-quoted portion of the judgment of the Hon'ble Supreme Court answers the query raised by learned counsel for respondents No.3 & 4 that the petitioner has no vested right to complete his tenure of appointment for second term against the post of M.D./C.E.O. NESP AK after reaching the age of superannuation.
17. During the course of arguments, learned counsel for respondents No.3 & 4 has adopted specific plea that as future happenings are to be governed under the Companies Act, 2017, in case the impugned Office Order is set aside, the government has the power to remove M.D./C.E.O. of a government owned company in terms of section 187(4) of the Companies Act, 2017 and the petitioner would again be terminated. Perhaps learned counsel for the respondents has raised such contention in oblivion of the fact that as appointment of the petitioner was made under the Companies Ordinance, 1984 his terms & conditions regarding second tenure were to be governed under the said Ordinance irrespective of its repeal by the Companies Act, 2017. Further , section 509 of the Companies Act, 2017 deals with repeal and saving clause which for convenience of reference is reproduced herein below: - "509. Repeal and savings .--(1) The Companies Ordinance, 1984 (XLVII of 1984), hereinafter called as repealed Ordinance, shall stand repealed, except Part VIIIA consisting of sections 282A to 282N, from the date of coming into force of this Act and the provisions of the said Part VIIIA along with all related or connected provisions of the repealed Ordinance shall be applicable mutatis mutandis to Non-banking Finance Companies in a manner as if the repealed Ordinance has not been repealed: Provided that repeal of the repealed Ordinance shall not-
(a) affect the incorporation of any company registered or saved under repealed Ordinance; or
(b) revive anything not in force at the time at which the repeal take effect; or
(c) affect the previous operation of the repealed Ordinance or anything duly done or suffered thereunder; or
(d) affect any right, privilege, obligation or liability acquired, accrued or incurre d under the said repealed Ordinance ; or
(e) affect any penalty imposed, forfeiture made or punishment awarded in respect of any offence committed under the repealed Ordinance; or
(f) affect any inspection, investigation, prosecution, legal proceeding or remedy in respect of any obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such inspection, investigation, prosecution, legal proceedings or remedy may be made, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act has not been passed.
(2) Notwithstanding the repeal of the repealed Ordinance-
(a) any document referring to any provision of the repealed Ordinance shall be construed as referring, as far as may be, to this Act, or to the corresponding provision of this Act;
(b) all rules, regulations, notification, guideline, circular , directive, order (special or general) or exemption issued, made or granted under the repealed Ordinance shall have effect as if it had been issued, made or granted under the corresponding provision of this Act unless repealed, amended or substituted under this Act;
(c) any official appointed and anybody elected or constituted under repealed Ordinance shall continue and shall be deemed to have been appointed, elected or constituted, as the case may be, under the corresponding provision of this Act;
(d) all funds and accounts constituted or maintained under the repealed Ordinance shall be deemed to be in continuation of the corresponding funds and accounts constituted or maintained under this Act;
(e) every mortgage and charge recorded in any register or book maintained at any office under the repealed Ordinance shall be deemed to have be recorded in the register or book maintained under the corresponding provisions of this Act;
(f) any licence, certificate or document issued, made or granted under the repealed Ordinance shall be deemed to have been issued, made or granted under this Act and shall, unless cancelled, in pursuance of any provisions of this Act, continue to be inforce until the date specified in the licence, certificate or documents.
(3) The mention of particular matters in this section or in any other section of this Act shall not prejudice the general application of section 6 of the General Clauses Act, 1897 (X of 1897), with regard to the effect of repeals.
(4) After the commencement of this Act, the expression Companies Ordinance, 1984(XL VII of 1984) and any referring sections thereof, used in any law for the time being in force including all administered legislation and rules, regulations and guidelines made thereunder , shall be read as Companies Act, 2016 along with corresponding provisions of Companies Act, 2016 unless the context requires otherwise. " (emphasis provided)
As per clause (d) of sub section 1 of section 509 ibid any right privilege, obligation or liability acquired or accrued in favour of any person under the repealed law shall not be affected. Moreover , the Apex Court of the country , while dealing with a right, obligation, privilege or right of a person accrued under a repealed law in the case of Shahida Bibi and others v . Habib Bank Limited and others (PLD 2016 SC 995 ) has inter-alia held as under: - "8. In any event, it is indeed settled law, in line with section 6 of the General Clauses Act, 1897, that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall in so far as it is not inconsistent with the provisions of new Act, be deemed to have been done or taken under the corresponding provisions of the new Act. A litigant is provided protection with respect to any right, privilege, obligation or liability acquired or accrued under any enactment repealed. Substantive laws are only very exceptionally amended with retrospective effect for the eminently sensible reason that one does not change the goal posts midgame. Unless a Legislature enacts a new law (the 1997 Act) to be specifically retrospective, and that too with great particularity of language, the Courts are not to assume retrospectivity. There is nothing in the repealing section, i.e. section 28 of the 1997 Act, to indicate that the Legislature meant for such Act to be applied with retrospective effect. Therefore the question of retrospective application of the provisions of the 1997 Ordinance (and the 1997 Act) does not arise, as the execution proceedings in the case at hand, though instituted under the 1984 Ordinance, stood transferred to the Banking Court established under the 1997 Ordinance and then the 1997 Act, and in the absence of any saving clause as mentioned above, the relevant provisions of the 1997 Ordinance (and then the 1997 Act) were to apply on the date of transfer of such proceedings and thereafter.
The Banking Court is not required to proceed de novo, rather from the stage which the proceedings had reached immediately prior to the transfer as envisaged by section 7(7) of the 1997 Act (reproduced hereinabove)."
18. Learned counsel representing respondents No.3 & 4 has repeatedly argued that as the Board has the authority to validate/rescind its previous decision or to modify the same, thus, superannuation of the petitioner was validated by the Board in its subsequent meetings inter-alia observing that as he was involved in activities prejudicial to conduct of a government servant he was removed from service. It is very ironical that respondent No.2 issued impugned Office Order on account of superannuation of the petitioner which was validated by the Board in its 143 meeting without any addition or deletion. Nobody can question the authority of the Board to appoint/remove M.D./C.E.O. of a Company but when it opted to ratify a decision, which otherwise was not tenable in the eye of law, it could not be allowed to add on certain allegations in the subsequent meetings just to portray the petitioner as persona non designata or to create evidence in support of an illegal order passed by an incompetent authority.
Moreover, after termination of the petitioner from the post of M.D./C.E.O. NESPAK said matter could not be reopened while mingling it with other matters as has been done by the Board in its 144 Meeting and onwards.
19. It is case of the respondents that due to involvement of the petitioner in unlawful activities causing loss to the National Exchequer worth millions of rupees he could not be allowed to continue as M.D./C.E.O. NESP AK. While asserting so, the respondents did not bother to go through the contents of the impugned Office Order as well as findings of the Board while ratifying the said decision. Had there been anything adverse against the petitioner the same was to be confronted to him. As no such material was either referred by respondent No.2 while issuing the impugned Officer Order or by the Board at the time of ratifying the impugned Office Order said assertion cannot be given any credence.
20. According to learned counsel for respondents No.3 and 4, the members of the previous Board, which appointed the petitioner for second term, being in league with him, the blunders committed by him could not be unveiled. It cannot be believed that the Board, which is chaired by the Secretary , Ministry of Energy , was so influenced by the petitioner that any omission or commission on his part was let unnoticed. Moreover , at the time of re-appointment of the petitioner for second term the Board inter-alia resolved as under: - "The Board appreciated the achievements of Mr. Amjad A. Khan during his existing term and considering his excellent performance which is reflected truly in the control of financial matters and all time high Business acquisition and unprecedented income and profit, approved his re-appointment for another term of three years, effective 16 of August 2016."
When the assertion of the respondents regarding involvement of the petitioner in any subversive activities is considered while putting in juxtaposition to the afore-quoted conclusion of the Board the same proves to be abortive.
21. As per learned counsel representing respondents No.3 & 4 the petitioner was removed from the office of M.D./C.E.O. NESP AK on account of findings of the inquiry committee. A perusal of findings of the inquiry committee reveals that the committee recommended penalty of censure against the petitioner . If the competent authority was not in agreement with the recommendations of the inquiry committee either it could order for de novo proceedings or issue a Show Cause Notice to the petitioner for imposition of higher penalty as compared to that recommended by the Inquiry Committee but in the instant case instead of following the due procedure, the Prime Minister of the country through its Secretary recommended for removal of the petitioner . The said recommendations being violative of the judgment of the Apex Court of the country reported as Secretary Government of Punjab (C&W) and others vs. Ikramullah and 5 others (2013 SCMR 572) cannot be blessed with stamp of authenticity .
22. It is high time to note that the documents produced by learned counsel for the petitioner are suggestive of the fact that the government both Provincial as well as Federal is intruding in the affairs of NESPAK which otherwise being an independent entity was immune from such interference. While taking care of the interference of the government in the affairs of NESPAK the Apex Court of the country in order, dated 21.05.2013, passed in C.M.A. No.2386 of 2013 in CMA No.1564 of 2013 has inter-alia concluded as under: - "***If in the past the Ministry of Water & Power has been interfering in the appointment of the Chief Executive, this appears to be contrary to the provisions of the Articles of Association as well as Section 198 & 199 of the Companies Ordinance referred to hereinabove. It also appears that the very object of creating a separate/autonomous limited liability company was to ensure that in the internal management of the Company,rd th th there is no direct governmental interference. Nonetheless the past practice of the Government cannot override the express statutory provisions or the provisions of Article 45 of the Articles of Association reproduced above."
23. The acts of the Provincial as well as Federal Government, as depicted from the documents tendered by learned counsel for the petitioner, during the course of arguments, are proof positive of the fact that they are interfering in the affairs of NESPAK in sheer violation of the judgment of the Apex Court of the country justifying interference by this Court.
24. The political motivation in the case of the petitioner right from the communication addressed by then Chief Minister , Punjab to the then Prime Minister of the country and removal of the petitio ner by respondent No.2 instead of the Board is established beyond any shadow of doubt. While dealing with political victimization of a public servant, the Apex Court of the country in the case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195 ) has inter-alia observed as under: - "12. This Court, in a number of precedents has, interpreted and emphasized these very principles, some of which need to be reiterated at this point. Before that, however, we may note the precept and rule of public trust which forms the basis of this area of the law. This court has repeatedly observed that "functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are their pay masters." [Syed Yousaf Raza Gillani v. Assistant Registrar, (PLD 2012 SC 466) affirming Muhammad Yasin v. Federation of Pakistan]. Most recently, in the case relating to dual nationality of Parliamentarian, we have reiterated that "all State authority is in the nature of a 'sacred trust' and its bearers should therefore be seen as fiduciaries" (Mehmood Akhtar Naqvi v.
Federation of Pakistan, Const. P. 5/2012). One of the implications of this concept, highlighted in the case-law considered below, is that the matter of tenure, appointment, posting, transfer and promotion of civil servants cannot be dealt with in an arbitrary manner; it can only be sustained when it is in accordance with the law.
Moreover, the use of the words 'in the public interest' in such matters are not fatuous or pointless, but emphasis the fiduciary nature of orders relating to tenure, posting etc. Thus a proposed decision which deviates from the accepted or rule-based norm without proper justification, can be tested on the touchstone of a manifest public interest."
25. The inconsistent attitude of respondents No.3 & 4 is also apparent from the fact that while filing report and parawise comments initially they challenged the maintainability of this petition on the ground that the same is barred in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 whereas subsequently they took the stance that NESP AK, being a private limited company , instant petition is not maintainable as it does not fall within the definition of person as defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. Both these stances are contrary to each other . Further the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, being applicable in cases of civil servants only, is not attracted to the instant petition. Moreover , as NESP AK is exclus ively owned by the Federal government, it falls within the definition of a person as defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. Reliance in this regard is placed on the case reported as Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 201 1 SC 132 ).
26. Learned counsel representing respondents No.3 & 4 has also challenged maintainability of this petition on the point of laches. It is admitted position that an aggrieved person is supposed to approach this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 within reasonable time and according to the majority view reasonable time has been defined as six months. The impugned Office Order was issued on 10.04.2017 whereas the instant petition was filed on 06.09.2017, thus, the same is not hit by laches .
27. It is not in dispute that all the decisions of the Board were being notified through Company Secretary whereas the impugned Office Order was issued by the Section Officer (Admn.), Government of Pakistan, Ministry of Water & Power , Islamabad. To meet with the procedural flaws, on the part of respondent No.2, learned counsel for respondents No.3 & 4 has argued that as the impugned Office Order was ratified by the Board, no procedural flaw can be used to nullify the same. In this regard, I disagree with learned counsel for the respondents for the reason that when the basis of an action is held untenable, the subsequent superstructure cannot be allowed to remain in field mere on account of ratification by the competent authority . Reliance in regard is placed on the case reported as Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483). Further , the Apex Court of the country , while dealing with the issue under discussion in the case of Muhammad Hanif Abbasi (Supra) has inter-alia observed as under: - "6. **W e are conscious of the principle that there is no estoppel against law and that the point of law can be allowed to be raised at any stage of the proceeding and no valid structure can be built upon a foundation of the law which is void ab initio .................."
28. Leaned counsel for respondent No.3 & 4 has vociferously argued that as the petitioner was re-appointed for second term, without issuance of proclamation in the national press, the prospective contestants were deprived of their right to contest against the post in question, thus, the impugned Office Order is immune from interference by this court. Had the petitioner been removed from the office of M.D./C.E.O. NESPAK on account of any procedural flaw/irregularity towards his appointment the same had to be incorporated in the impugned Office Order. As no such reason was mentioned either in the impugned Office Order, terminating the petitioner from the office of M.D./C.E.O NESPAK, or by the Board while ratifying the same, impugned Office Order cannot be allowed to hold the field especially when mala-fide and malice on the part of the persons at the helm of the affairs in the Federal as well as Provincial Government is floating on the surface.
29. As per section 202 of the Companies Ordinance, 1984 M.D./C.E.O. of a company can be removed by 3/4 majority of members of the Board or through a special resolution. According to communication, dated 11.04.2017, addressed by the Company Secretary , NESP AK to all the members of the Board the total numbe r of members were 12 out of which only six participated in 143 meeting of the Board wherein the Office Order regarding termination of the petitioner from the office of M.D./C.E.O. NESP AK was validated. If for the sake of academic discussion it is presumed that after validation of the impugned Office Order by the Board in its 143 meeting the procedural flaw stood cured, even then no sanctity can be attached to the said validation as out of 12 members only six participated in the proceedings, thus, the condition of 3/4 majority of the members of the BOD as stipulated under section 202 ibid remained unfulfilled.
30. It is also imperative to note that according to Minutes of 143 meeting of the Board the official members including the Secretary , Ministry of Water and Power (the Chairman) did not participate. Prima-facie, it seems that the official members, who were high-profiled officers of the Federal government, did not participate in the meeting knowing fully well that the Of fice Order , validation whereof was sought, was not supported by the relevant law .
31. The political interference in the matter of the petitioner is also manifest from the fact that while dealing with Item No.2 in the agenda of 143 Meeting of the Board it was concluded as under: - "As per discussion held with the BOD members before the board meeting on the receipt of inquiry report and directions of the competent authority thereon, the board reviewed its earlier decision taken in 141 meeting of the Board held on 27-06-2016 regarding grant of extension of further three (03) years to Mr. Amjad Ali Khan, Ex- MD, NESP AK, and unanimously ratified Office Order No.7(30)/2012-NESP AK dated 10.4.2017 affecting the retirement of Mr. Amjad Ali Khan, Ex-Managing Director , NESP AK w.e.f. 09-04 -2017 on attaining the age of superannuation." (emphasis provided).
The above quoted minutes of 143 meeting of the Board make it crystal clear that the Board did not take up the matter of its own rather the ratification regarding retirement of the petitioner was result of direction issued by the competent authority . Astonishingly , on the one hand, NESP AK authorities are of the view that the competent authority in the matter of the petitioner was the Board and on the other members of the Board resolved that they were going to ratify the termination of the petitioner from the post of M.D./C.E .O. NESP AK as a result of the direction issued by the competent authority. If the Board had the exclusive competence in the matter of the petitioner , how its members could refer to any other competent authority . The said fact also smacks some foul play on the part of the respondents towards the termination of the petitioner .
32. To cover up the blunder committed by respondent No.2, while issuing the impugned Office Order , learned counsel for respondents No.3 & 4 has argued that as the petitioner himself requested that he be allowed to continue as M.D./C.E.O. NESP AK to save his reputation, he was allowed to continue till the age of superannuation despite the fact that irregularities of grave nature on his part were unearthed by the competent authority . Theth rd rd th rd rd st rd assertion of learned counsel for the respondents cannot be given any weightage inasmuch as if the petitioner was involved in alleged subversive activities the competent authority , which at present seems to be much worried about loss to the National Exchequer , had to act promptly . As nobody initiated any proceedings against the petitioner till the issuance of impugned Office Order the said assertion cannot be used to the disadvantage of the petitioner who otherwise has succeeded to establish that his removal from the post of M.D./C.E.O. NESP AK was politically motivated.
33. One of the allegations levelled by the NESPAK authorities against the petitioner was that he regularized services of 50 contract employees without following the due process. According to the documents placed on record by learned counsel for the petitioner the said matter was thoroughly probed by NAB authorities and after considering all limbs of the case has concluded that not only regularization of the contract employees was in line with the rules on the subject but also the petitioner made recruitment agains t various posts after fulfilment of all codal formalities. Thus, the said fact cannot be used against the petitioner .
34. Indubitably , the petitioner was appoin ted for second term for three years w.e.f. 16 of August 2016 in view of his exceptional output portrayed in the Minutes of 141 Meeting of the Board, quoted above, thus he had lawful expectancy to complete his second term of three years especially when no omission or commission was pointed out on his part in the impugned Office Order . The Hon'ble Supreme Court of Pakistan while dealing with the principle of legitimate expectancy , in the case reported as Secretary , Agriculture Government of the Punjab, Lahore and others v . Muhammad Akram (2018 SCMR 349 ) has inter-alia observed as under: - "*The respondent having been notified as an accountant and having served as such for more than 18 long years, cannot now be denied his perks and privileges as such. The payments of such perks, privileges and benefits are also protected under the doctrine of legitimate expectancy, as in the circumstances the respondent was wholly justified in expecting such payments."
Admittedly , after his appointment as M.D. /C.E.O. NESP AK for the second term the petitioner performed his duties till issuance of the impugned Office Order . In this backdrop, he was entitled to complete his second tenure of three years until and unless he was removed by the Board while following the procedure laid down in the repealed Companies Ordinance, 1984.
35. During the course of arguments learned counsel representing respondents No.3 & 4 has put much emphasis on the fact that through the instant petition the petitioner has sought review of the order passed by the Executive.
This Court is cognizant of the fact that in routine the Superior Courts rarely interfere in the decisions of the executives, however, when the impugned act of the executive is proved to be result of political victimization or is found to be tainted with malice the jurisdiction of the Superior Courts to take care of such action cannot be abridged. Reliance in this regard is placed on the case reported as Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2015 SC 6).
36. The emphasis of the learned counsel appearing on behalf of respondents No.3 & 4 on the fact that after ratification of the impugned Office Order by the Board, any procedural flaw on the part of respondent No.2 stood cured, is not worth consideration for the reason that the Apex Court of the country in the cases reported as Unair Ali Khan and others v. Faiz Rasool and others (PLD 2013 SC 190) and Maulana Abdul Haque Baloch and others v. Govt. of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641) has held that an act done by an alien cannot be ratified by the relevant authority. Insofar as the case in hand is concerned, respondent No.2 having no connectivity with the appointment/removal of the M.D./C.E.O. NESPAK could not issue the impugned Office Order, thus, the subsequent ratification/validation of such order does not bring it to the category of legitimate order.
37. During hearing of the matter learned counsel appearing on behalf of respondent No.3 & 4 took specific plea that as the petitioner succeeded to get appointment against the post of M.D./C.E.O. NESP AK for second term on the recommendations of Mr. Ayyaz Sadiq, the then Speaker National Assembly , thus, he was rightly removed by respondent No.2 whose decision was ratified by the Board. The said assertion of the learned counsel instead of lending any help to his clients is suggest ive of the fact that the persons at the helm of affairs in the Federation in the previous regime misused their portfolio to intrude in the affairs of NESP AK which being contrary to theth st observations/findings of Hon'ble Supreme Court of Pakistan in the afore-quoted decisions deserves to be dealt with iron hands.
38. This Court fully agrees with learned counsel for respondents No.3 & 4 that a person who seeks equity must do equity . As far as the case in hand is conce rned, the petitioner has challenged the impugned Office Order mainly on the ground that respondent No.2 had no authority to issue the same, thus, the said principle is not attracted in the case in hand.
39. Learned counsel representing respondents No.3 & 4 argued with vehemence that as no ground regarding political victimization of the petitioner was incorporated in the Writ Petition the oral assertions canvassed by the learned counsel for the petitioner at the bar cannot be entertained. In this regard, I do not subscribe to the view point of learned counsel for respondents No.3 and 4 for the reason that when the assertion of the petitioner regarding his political victimization is supported by the relevant documents, referred supra, this Court can take into consideration the oral submissions of the parties as well.
40. According to the Companies Ordinanc e, 1984 the members of the Board of a State owned Company are to be nominated by the Federal Government. Admittedly , the members of the Board, who recommended the petitioner for appointment against the post of M.D./C.E.O. NESP AK for both terms, were appoin ted by the Federal Government, thus, at this stage respondents No.3 & 4 cannot claim that the Members of the said Board connived with the present petitioner . If any member of the Board was involved in illegal activities the Federal Government could remove him but inaction on the part of the Federal Government, at the relevant time, suggests that allegation of petitioner 's connivance with the members of the previous Board is result of some after-thought.
41. Learned counsel for respondents No.3 & 4 emphatically argued that as the petitioner was found involved in illegal appointments in NESP AK on the recommendations of the political figures, he was rightly removed from the office of M.D./C.E.O. NESP AK. To fortify his contention, learned counsel has referred to a list purportedly prepared by the then Personal Staff Officer to the present petitioner but has failed to produce the same before the Court, thus, no exception can be taken against the petitioner on the said count.
42. It is very paradoxical that during the proceedings in this petition the stance of the respondents was that only the Board had the competence to appoint/remove the M.D./C.E.O. NESP AK. Thoug h learned counsel representing respondents No.3 & 4 addressed the Court at great length but failed to refer to any rule or regulation where-under the government could refer the matter to the Board after passing an order regarding termination of M.D./C.E.O. It is well entrenched by now that an act requires to be done in a particular manner the same should be done in that manner only and any deviation from the procedure provided in the relevant statute would amount to incurable illegality justifying judicial review by the Superior Courts. Reliance in this regard is placed on the case reported as Chaudhry Shujat Hussain v . The State (1995 SCMR 1249 ).
43. For what has been discussed above, I have no hesitation to hold that respon dent No.2 had no jurisdiction to issue the impugned Office Order . Further , the acclaimed ratification of the impugned Office Order by the Board was not in consonance with the spirit of section 202 of the Companies Ordinance, 1984 rather the same was result of political influence justifying interference by this Court in exercise of its Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Consequen tly, instant petition is accepted , and the impugned Office Order , being illegal, unlawful and without lawful author ity is set aside . No order as to costs.