SHAMS MEHMOOD MIRZA, J. This writ petition calls into question the appointment of respondent No.7 to the post of Chief Executive Of ficer, Lahore Transport Company (the Company ) on 23.05.2018.
2. Learned counsel submits that the appointment of respondent No.7 was made in violation of Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 (Guidelines) in as much as the Board of the Company was required to recommend three names to the Line Ministry whereas in the present case only two names were recommended. It was furthermore submitted that respondent No.7 lacked the necessary experience as mentioned in the aforementioned Guidelines and also in the advertisement. It was submitted that respondent No.7 acquired her post-graduation degree of Fellow of the Chartered Institute of Management Accountants
(FCMA) on 31.12.2014. It was stated that respondent No.7 joined the company on 23.07.2012 and worked at different positions including head of Human Resource Department and also temporarily officiated as acting Chief Executive of the Company. Prior to her joining the Company, it is alleged, the experience she acquired working at various entities had no nexus with the requirement stated in the advertisement. It was stated that a candidate must have ten years of experience after acquiring the post-graduation degree which respondent No.7 lacks.
Learned counsel also referred to the summary moved before the Chief Minister for the appointment of respondent No.7 to contend that the Chief Minister in view of the recommendations made by the Secretary, Services and General Administration Department (Regulations) directed on 29.03.2018 to re-advertise the post for recruitment afresh. The appointment of respondent No.7 was earlier reviewed by the Secretary, Services and General Administration Department (Regulations) who made a proposal of re-initiation of the selection process for fresh recruitment to the post of Chief Executive in view of the fact that five Members of the Board of Directors did not attend the meeting for shortlisting the candidate. The Law Secretary advised the Chief Minister to either withdraw order dated 29.03.2018 or to re-advertise the post of the Chief Executive of the Company. It is stated that the Chief Minister without withdrawing order dated 29.03.2018 appointed respondent No.7.
3. Learned counsel for respondent No.7, the Company and the learned Assistant Advocate General have filed parawise comments in which the stance of the petitioner has been controverted. Mr. Hafiz Tariq Naseem, learned counsel for respondent No.7 led the arguments and stated that the procedure and criteria mentioned in the Guidelines was strictly followed in appointing respondent No.7 to the post of Chief Executive of the Company. He stated that respondent No.7 was duly qualified and has a vast experience in serving at various organizations at key places and was thus eminently qualified for the post in question. In regard to the summary made before the Chief Minister, it was submitted that the Chief Minister ignored the recommendations of the Secretary, Services and General Administration Department (Regulations) as the requisite quorum of the meeting of the Board of Directors of the Company was complete when the shortlisting of the candidate was taken place. The learned counsel also raised the issue of maintainability of this writ petition on the ground that the petitioner was not an aggrieved person within the contemplation of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
4. Before proceeding further in the matter , it would be advantageous to reproduce the framework provided for the appointment of the Chief Executive of a public sector company in the Guidelines.
Recommendation from the Board to the Competent Authority:
(1) The Board shall recommend a minimum of three candidates to the line ministry for appointment to the position of Chief Executive.
(2) Copy of the minutes of meeting of the Board recommending the shortlisted candidates shall be forwarded to the line ministry for information and perusal.
(3) ...
(4) ...
(5) The candidates shall be recommended to the line ministry in the order of preference based on the results of evaluation.
Schedule II to the Guidelines mentions the criteria for the appointment of Chief Executive of the public sector company . The relevant portion relevant to the controversy in issue reads as under:
3. The assessment of the above criteria shall have regard to the considerations set out below:
(1) Competence and Capability:
(a) Competence and capability are demonstrated by a person who possesses the relevant competence, experience and ability to understand the technical requirements of the business, the inher ent risks and the management process required to perform his role ef fectively as a chief executive.
(b) In assessing a person's competence and capability , the appointing authority shall consider matters including, but not limited to the following:
(i) whether the person has the appropriate qualification, training, skills, practical experience and commitment to effectively fulfill the role and responsibilities of the position; and
(ii) whether the person has satisfactory past performance or expertise in the nature of the business being conducted.
(c) To undertake the aforesaid assessment ef fectively , the following parameters are prescribed for consideration:
(i) He must I. Possess a graduate degree from a well-reputed institute or such other professional qualification relating to the principle line of business of the public sector company , including manufacturing, mining, science, technology , agriculture, social science, or any other field commensurate to the job, or II. Be a member of a recognized body of professional accountants, or III. Be a recognized businessman or professional with a postgraduate degree in business administration or public administration or finance or commerce or marketing or equivalent; and
(ii) He must possess demonstrated experience of not less than ten years: I. in governance or business administrati on or public administration or finance or commerce or marketing or any other field commensurate to the job in significant organizations with a commercial orientation, or II. as chief executive or at a senior management level in similar organizations that have commercial attributes, or III. at senior positions in relevant professional areas including, inter alia, science, technology, finance, law, business, agriculture, social sciences, etc., or IV. in community or professional organizations; or V. at the level of member of governing body of a professional institute or as a head of department.
5. The relevant conditions mentioned in the advertisement are reproduced hereunder: Candidates holding Master Degree in Business Administration/ Engineering/Public Administration/FCA/FCMA.
He/she must possess demonstrated experience in transportation industry, which includes governance or business administration or public administration of finance commerce, or as chief executive or at a senior management level in similar organization or as a head of department.
The Candidate must have minimum 12 years' experience in Public and Private sector which includes at least 05 ears in senior management position.
6. The petitioner takes no issue with the post-graduation qualification of respondent No.7, which fulfills the criteria mentioned in the advertisement. There is also no dispute with regard to the six years' experience respondent No.7 had while working in the Company at various posts which satisfies the type of experience required for the post of Chief Executive of the Company. There is, however, a contradiction between the Guidelines and the advertisement in respect to the duration of experience that a candidate must possess to qualify for the job. The Guidelines prescribes ten years' experience whereas the advertisement in question proposes twelve years' experience. Notwithstanding the variance in the two documents, it is manifest that the stipulation in the Guidelines shall prevail and, therefore, respondent No.7 must demonstrate 10 years' experience in governance or business administration or public administration or finance or commerce or marketing. The Board of the Company under the Guidelines was required to assess the candidates by taking into account the experience they had in governance or business administration or public administration or finance or commerce or marketing. The Board of the Company in its meeting concluded respondent No.7 to be suitably qualified in this regard. The relevant certificates issued by various organizations in which respondent No.7 remained employed are appended with the reply filed by her and were also taken into account by the Board of the Company in their assessment process. These testimonials prima fade meet the criteria regarding the nature of experience a candidate must have as mentioned in the Guidelines. Taken together her work experience in various organizations, the length of service of respondent No.7 including the employment period in the Company matches the threshold of ten years' stipulated in the Guidelines. Be that as it may, it lay in the domain of the Board of the Company to evaluate the experience of the candidates and its decision cannot be overturned by this Court. A contrary finding by this Court would amount to substituting its decision for that of the Board, which is not permissible.
7. It is apparent from the summary moved before the Chief Minister for appointment of the Chief Executive of the Company that the Secretary, Transport on 02.03.2018 raised the issue of lack of quorum of the meeting of the Board of directors of the Company and accordingly made recommendations for initiation of the recruitment process afresh. The matter was sent for advice to the Secretary, Services and General Administration Department (Regulations) Secretary who advised on 07.03.2018 for re-advertising the process for appointment to the post in question. The Chief Minister agreed with the proposal on 29.03.2018 as per the summary. The matter was again re-examined and it was held that the quorum of the meeting was complete and accordingly the opinion of the Secretary Law and Parliamentary Affairs was sought, who on 18.04.2018 advised the Chief Minister to either withdraw order dated 29.03.2018 or to re-advertise the post of the Chief Executive of the Company. According to the learned counsel for the petitioner the Chief Minister did not withdraw order dated 29.03.2018 and instead made the order for appointing respondent No.7. In the opinion of this Court, the order for appointment of respondent No.7 by the Chief Minister would imply that the recommendation for initiation afresh of the process for recruitment of the post of Chief Executive of the Company by the Secretary, Services and General Administration Department (Regulations) was rejected by the Chief Minister.
8. The most crucial aspect of the matter relates to the procedure provided for by Schedule-I to the Guidelines requiring the Board of the Company to recommend three names to the Chief Minister out of the competing candidates seeking his concurrence for appointment to the post of Chief Executive one of the nominated candidates. The relevant extract from the minutes of meeting of the Board of Directors of the Company held on 07.02.2018 is reproduced hereunder: Board interviewed the candidates and filled the evaluation form. Board also decided that the Secretary Transport will send the summary to the line ministry by including the names of five interviewed candidates with recommendation of two top scoring candidates namely Mariam Khawar top scorer and Adnan Mudasar for the post of CEO L TC for further interview/appointment.
9. The Board is required under the Guide lines to determine that the candidates proposed to be recommended for the post of Chief Executive have the (i) competence and capability; (ii) probity , personal integrity and reputation; and (iii) financial integrity . The necessary considerations and criteria for making assessment of the candidates are mentioned in Schedule-II of the Guidelines: It is thus apparent that the procedure for filling up the post of Chief Executive is through competitive selection. The overriding consideration of the Board must be to recommend the best candidates for the post based solely on the fulfillment of the criteria mentioned in Schedule-II of the Guidelines. The purpose for recommending three names appears to furnish a wide choice with the line ministry.
The Guidelines furthermore provide that in case the line ministry does not accept the names of the recommended candidates, it can remit the matter back to the public sector company after recording reasons for reconsideration and it can also direct it to identify additional/alternative candidates. On receiving the matter back, the Board of a public sector company may either re-evaluate the candidates from the pool of available applicants or reinitiate the appointment process, if none of the shortlisted candidates is found fit and proper for the position.
10. The action of nominating the candidates by the Board to the line ministry is thus culmination of the larger process of selection envisaged by Schedule-1 to the Guidelines. The recommendation of two names by the Board was in clear violation of the Guidelines which required the Board to recommend a minimum of three candidates to the line ministry for appointment to the position of Chief Executive. Needless to point out that the Guidelines were framed by the Securities and Exchange Commission of Pakistan in terms of sub-rule (2) of Rule 5 of Public Sector Companies (Corporate Governance) Rules, 2013 (the Rules), which provision reads as under: The Board shall evaluate the candidates based on the fit and proper criteria and the guidelines specified by the Commission for appointment to the position of the chief executive and recommend at least three candidates to the Government for its concurrence for appointment of one of them as chief executive of the Public Sector Company, except where the chief executive is nominated by the Government. On receiving concurrence or nomination of the Government, as the case may be, the Board shall appoint the chief executive in accordance with the provisions of the Ordinance. The Board shall also be responsible for development and succession planning of the chief executive.
The recommendation of three names by the Board out of the short-listed candidates, was a mandatory requirement which could not be circumvented by the Board by sending the names of only two candidates to the Chief Minister for appointment. On a fair interpretation of the relevant clause in Schedule-I to the Guidelines, it cannot be said that it relates to an immaterial matter rather compliance with the procedure appears to be essential to the validity of entire action of the Board in short-listing the candidates and making its recommendations. It is settled law that when the law directs that a particular proceedings shall be taken in a particular manner, the purport of the wording of the statute shall be taken as indicating the intention of the lawmaker to exact a strict compliance with its terms. In 6 Bac. Abr. 377, the following rule was laid down "If an affirmative statute, which is introductive of a new law, directs a thing to be done in a certain manner, that thing shall not, even although there be no negative words, be done in any other manner." The affirmative words in which paragraph 6 of Schedule-II of the Guidelines is couched demonstrate an absolute intention that no discretion is intended to be reserved with the Board for recommending less than three names. Any violation of the Guidelines and the Rules would necessarily vitiate the entire process for selection to the post of Chief Executive of the Company. It is evident that the process for initiating the case for the appointment to the post of Chief Executive of the Company was not in accordance with the manner laid down in the Guidelines. This aspect of the matter completely escaped the attention of both the Secretary, Services and General Administration Department (Regulations) and the Secretary, Law and Parliamentary Affairs. The Chief Minister consequently could not have concurred with the appointment of respondent No.7 to the post of Chief Executive of the Company. The proper course for the Chief Minister would be to refer the matter back to the Board of the Company for re-submission of the case with recommendations of three candidates as per the procedure provided for in clause 6(3) and (4) of Schedule-1 to the Guidelines.
11. The objection by the respondents on the standing of the petitioner to bring the challenge to this Court on the appointment of respondent No.7 requires no elaborate discussion in view of the law laid down in the case of Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lahore 343. The following excerpt from the judgment is relevant to repel the objection of locus standi raised by the respondents.
19. The object of this constitutional remedy is to protect the sanctity of the "public office" by safeguarding against unlawful appointments. The constitutional objective appears to be more institutional. Acting as gatekeepers, the constitutional courts protect the sanctity of a "public officer" and, as a result, shield public institutions from usurpers. The constitutional obligation is to ensure that persons selected to man public institutional are appointed in accordance with law without the slightest taint of impropriety. It is also a constitutional platform for the "whistle blowers" to come forward in public interest and raise the concern about wrongdoing within organizations. The result is that institutions/organizations are more open and accountable to their employees, shareholders and the greater public in their activities.
While referring to the standing of a perso n to bring such a challenge under Article 199 (1)(ii)(b) of the Constitution, it was held that "It is for this reason that these proceeding s are not strictly adversarial in nature and can be put into motion by any person (who need not be aggrieved)".
12. In the result, this writ petition is allowed and order of appointment of respondent No.7 is declared to be without lawful authority and of no legal effect.