This judgment will dispose of the following two Constitution petitions involving the common question of law and fact;--
(1) Writ Petition No,224 of 1992, (Dr. Sabir Mahmood v. Secretary Planning and Development Division, Government of Pakistan and 4 others.
(2) Writ Petition No,1049 of 1995, M.A. Jabbar and 3 others v. Federation of Pakistan and 5 others.
2. The facts giving rise to both these petitions are as follows:-- Writ Petition No, 224 of 1992.
Dr. Sabir Hussain, petition herein, a Chief (ENERCON) in the National Energy Conservation Centre, Islamabad, through this Constitution petition has challenged the validity of notification, dated 15- 1.1-1989,. whereby Arif Alauddin, respondent No,5 herein, was appointed as Managing Director in Enercon in BS-21 on the ground that he having no experience in the field was not qualified under the law to be appointed as such and that his appointment made by the Prime Minister being in violation of the rules was illegal, void and mala fide.
Writ Petition No, 1049 of 1995.
The petitioners herein, namely, M.A. Jabar, K.M. Zubari, Zafar Rehman and Gul Najam Jamy, being holders of Public offices in different capacities in the National Energy Conservation Centre (ENERCON) being aggrieved of the appointment of Arif Alauddin, respondent No,5 herein, vide Notification, dated 25-11-1989 have filed this Constitution petition praying that the same may be declared illegal, void, ab initio and of no legal effect.
Writ Petitioner No,4, namely, Gul Najam Jamy having since been retired, this petition to his extent has become infructuous and stands disposed of accordingly.
3. The National Energy Conservation Centre, Islamabad (hereinafter to be referred as ENERCON) was established through a Resolution, dated 23-12-1986 issued by Ministry of Planning and Development Department, Islamabad as an autonomous Federal Agency to be administered by a Council, namely, Pakistan Energy Conservation Council. The organization being under the direct control, management and financed by the Federal Government is performing the function in connection with the affairs of the Federation/Federal Government, therefore, the organization being of the status of attached department of the Federal Government, its employees are civil servants by virtue of section 2(d) of the Civil Servants Act, 1973. The petitioners being aggrieved of the appointment of respondent No,5 in BPS-21 as Managing Director of ENERCON through order, dated 25-11-1989 have challenged the same through these Constitution petitions inter alia on the following grounds:--
(a) That respondent No,5 being ineligible to hold the post of Managing Director of ENERCON was not entitled to be appointed as such
(b) That he did not possess the requisite qualifications in the specific field of Engineering.
(c) That he did not possess the requisite experience of 20 years in the Management position as provided in the method of appointment provided in the Notification S.R.O. No,978(1)/89, dated 24- 91989 issued by the Planning and Development Division of Government of Pakistan, in pursuance of Resolution No,S.R.O.4/KE/86), dated 23-12-1986 by virtue of which the ENERCON was established.
The method under clause (ii) of the S.R.O. prescribing the manner of appointment of Managing Director is as under--- "(ii) Managing Director shall be appointed by the Federal Government from amongst persons having at least 20 years experience in a responsible management position. The condition of experience will be relaxable in case of highly qualified person with varied experience."
The appointment of respondent No,5 is further challenged on the ground (i) the same was not made in the prescribed manner through a proper publication and advertisement as required under the law and was in violation of section 5 of the Civil Servants Act, 1973, (ii) the appointment was made in contravention to Rule 10 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, according to which the posts in connection with the affairs of the Federation in PBS-16 to 22 except those which do not fall under the method of appointment through Public Service Commission, shall be filled under the Federal Public Service Commission Rules, 1970 through examination conducted by the Commission,(iii) the appointment of respondent No,5 was contrary to the provisions of rule 7-A read with rule 3 of the Public Service Commission Rules, 1970 as no appointment without recommendation of the Federal Public Service Commission can be made without due process of selection (iv) that the recommendation of the Planning and Development Division for the appointment of respondent No,5 as Managing Director contain in a summary, dated 19-9-1989 was not approved by the competent authority, yet, he was appointed by the Prime Minister without adopting the procedure of selection by the Central Selection Board or by the Public Service Commission.
4. Learned counsel for the petitioners with a view to meet the preliminary objections relating to the maintainability of these petitions and exercise of jurisdiction by this Court argued that following points:--
(i) That the appointment of respondent No,5 not relating to the terms and conditions of his service, the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not applicable in the present case.
(ii) That the holding of public office by respondent No,5 usurper being a continuing wrong is challengeable through writ of quo warranto.
(iii) That the appointment of said respondent being without jurisdiction, coram non judice, mala tide and unconstitutional cannot be given protection through the subordinate law.
(iv)That the initial appointment not falling within the definition of terms and conditions of service, the petitioners cannot avail the remedy of appeal under section 4 of the Federal Service Tribunals Act, 1973.
(v)That the appointment was made in violation of sections 5 and 6 of the Civil Servants Act, 1973 read with Rules 10 and 12 of the Civil Servants (Appointment, Promotions and Transfers) Rules, 1973 and section 7 of the Federal Public Service Commission Ordinance, 1977 and further it was also in derogation to Rule 5(14) of Business Rules, 1974. Reliance has been placed on the following judgments:--
(1) Dr. Muhammad Amin Durrani v. Government of West Pakistan and another (PLD 1996 SC 99).
(2) Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42).
(3) M.U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228).
(4) The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170).
(5)Farhat Ali Khan v. Muhammad Siddique, Advocate and another (1995 SCM R 1570).
5. Respondent No,2 in his report and parawise comments to the writ petition submitted that respondent No,5 was validly appointed by the competent Authority, namely, the Prime Minister in exercise of the powers conferred upon him by para. 10(2) of the Resolution, dated 23-12-1986. The detail of technical qualification of respondent No,5 given therein is as under:--
(a) B.Sc. Engineering from the University. of Engineering and Technology, Lahore,
(b) M.Sc. in Technology and Policy from the Massachusetts Institute of Technology, U.S.A.,
(c) M.B.A. in Finance from the Quaid-e-Azam University, Islamabad Course work in Economic from the Harvard University, (e) The experience in Organizations of the World Bank Washing on DC: Centre for Policy Alternatives, Cambridge, USA; Centre for Technology and Administration, Washington DC; the USAID: Heavy Mechanical Complex, Taxila; and Attock Refinery Ltd., Moragh.
Further stand taken in the comments is that at the time of appointment of respondent No,5 as Managing Director of ENERCON, the resolution, dated 23-12-1986 was in field and the subsequent rules promulgated through notification, dated 24-9-1989 were not applicable to the appointment of Managing Director and the same is not questionable on the strength of said rules. The qualification and experience of respondent No, 5 as supplied by respondent No,2 in the comments is not disputed by the petitioners. The appointment of respondent No,5 as Managing Director of ENERCON was proposed by the Prime Minister Secretariat through letter, dated 11-6-1989 and the matter having processed, a summary, dated 19-9-1989 was submitted to the Prime Minister Secretariat by the Secretary Planning and Development Division, Government of Pakistan wherein it was proposed that the post of Managing Director should be filled in through advertisement and respondent No,5 can be considered alongwith oilier candidates. However, disagreeing with the proposal, the competent authority was pleased to appoint respondent No,5 as Managing Director of ENERCON through notification, dated 25-11-1989 under resolution, dated 23-12-1986.
6. Respondent No, 5 in his comments stated that his appointment was made much before the promulgation of the Rules in question and, therefore, the same were not applicable to his appointment. He placing reliance on the letter, dated 2-11-1988 issued by the Prime Minister Secretariat took the plea that his appointment as Managing Director was approved by the Prime Minister under the Resolution when no other rule was in existence and the formal notification of his appointment issued on 25-11-1989 would not be considered to have been issued under the Rules subsequently introduced.
7. The appointment of respondent No, 5 as Managing Director of ENERCON is being challenged on the ground that he lacked requisite experience for the appointment of the post. Learned counsel for the petitioner placing reliance on the notification, dated 24-9-1989 issued by the Planning and Development Division, Government of Pakistan (ENERCON), with the approval of Establishment Division vide OM No,6/6/87-AB-2/R7, dated 13-4-1993, which prescribes the method of appointment of the posts/vacancies under the National Energy Conservation Centre contended that all posts in Grades 1 to 21 mentioned in the table under serial No,1 of the notification were to be filled in the manner as given therein. The qualification and experience for the appointment of Managing Director, given in the Schedule I to the said notification is as under:- Sr. Nomenclature of No. the Posts and BPS.Qualifications. Experience. Max.
Age.
1. Managing Director BPS-21Master's degree in Mechanical/Chemical/ Electrical/Agricultural Engineering.The Candidate should have proven record of holding senior management positions in public and/or private sector organizations engaged in efficient end-use energy management in various energy consuming. Sectors of economy. He should have demonstrated strong leadership qualities in his work experiences. He should also have an understanding of an sensitivity to issues of energy conservation. The person should have a minimum of 20 years of work experience in a management position.
8. Learned counsel for the petitioners contended that respondent No, 5 lacking the criteria for the appointment of Managing Director at the relevant time has no right to hold the post.
9. On the other hand, the case of respondent No,5 is that the notification, dated 24-9-1989 issued by the Planning and Development Division having no overriding effect to the Resolution, dated 23- 12-1986, under which the ENERCON was established, the rules made thereunder being subordinate to the said Resolution, cannot be pressed into service to challenge the appointment of Managing Director. Learned counsel appearing on behalf of respondent No,5 contends that under Article 6 of the said Resolution, the terms and conditions of all employees except the Managing Director of ENERCON could be prescribed through Regulation duly approved by the Federal Government.
Article 6 of the Resolution provides as under:-- "(6) Appointment of Officers, etc.---Subject to the provision in the approved budget, the Council may create posts that may be needed and appoint such officers, other than the M.D. of ENERCON Advisers and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as may be prescribed by its own Regulations duly approved by the Federal Government."
Reliance has also been placed on section 10(2) of the said Resolution which provides as under:-- "10(2) Organization.---The ENERCON shall be headed by a Managing Director of appropriate professional standing who shall be appointed , by Federal Government."
In a nutshell, learned counsel submits that the appointment of Managing Director made under Resolution of 1986 is not challengeable on the strength of rules made thereunder. He, in the alternate, argued that even under the subsequent notification, the condition of 20 years 'experience is relaxable in a suitable case and that the same having relaxed by the competent authority in its discretion, the appointment being legal and valid is not challengeable.
10. Respondent No,5 except lack of experience and contended by the learned counsel for the petitioners possessed rich qualification to be appointed as Managing Director. Therefore, the pivotal question would be whether the condition of experience as envisaged in the method of appointment given in the notification, dated 24-9-1989 has overriding effect to the Resolution, date 23-12-1986 by virtue of which the ENERCON was established and the competent Authority in exercise of the powers thereunder appointed respondent No,5 as Managing Director.
The Resolution, dated 23-12-1986 defines the Regulation and Rules under clauses (k) and (1) of section 1 thereof, as under:-- "(k) 'Regulation' means Regulation made under this Resolution. (1) 'Rules' means rules made under this Resolution.
The Managing Director performing the duty as Secretary is member of the Council, which discharges functions under the Prime Minister as Patron-in-Chief under Article 2 of the said Resolution, which reads as under: -- "(2) Composition of the Council.---(1) The Council shall function under the patronage of the Prime Minister of Pakistan, who shall be its a Patron-in-Chief.
(ii) Minister for Planning and Development, Government of Pakistan shall be its Chairman with the following members:--
(a) Minister for Petroleum and Natural Resources (Co-Chairman).
(b) Deputy Chairman, Planning Commission.
(c) Chairman of the Advisory Committee of the Council.
(d) Secretaries of the Ministries of Agricultural, Communicators, Finance, Industries, Housing, Petroleum and Natural Resources, Planning, Production, Railways, Science and Technology and Water and Power.
(e) Chief Secretaries of the Provincial Governments.
(f) Managing Director, ENERCON as Member Secretary."
Article 19 of the said Resolution gives powers to the Council to make regulations which is as follows:-- "(19)Power to make Regulations.---The Council may, with the prior approval of the Federal Government, make such regulations not inconsistent with the provisions of the Resolution as are considered expedient for the achievement of its aims and objectives and for the performance of its functions."
The notification, dated 24-9-1989 was issued in pursuance of para. 6 of the Planning and Development Division's Resolution S.R.O. No,4(KE)/86, dated 23-12-1986 and 6-1-1987, whereby the method of qualification and other conditions for the appointment of various posts in the ENERCON are laid down. The condition of 20 years' experience in management position for the appointment of Managing Director being relaxable in case a highly qualified person with varied experience cannot, therefore, be pressed as a mandatory condition for the appointment. The competent Authority in suitable cases where a person has various experience with higher qualification, if considers him more beneficial to the job, can relax the condition of 20 years' experience in management position in its discretion. The Federal Government through notification, dated 11-7- 1998 published in the gazette on 17-7-1998 prescribed the method of appointment of different posts in ENERCON which provided at Serial No,1 in the table that the Managing Director (BPS-21) will be appointed by the Federal Government. This subsequent development shows that despite the framing of the rules through earlier notification, the discretion of the competent Authority was kept in tact. The contention of the learned counsel for the petitioners that respondent No,5 being not qualified to be appointed as Managing Director has no authority to hold the post and demanded the issuance of writ of quo warranto, is not without force and there can be no cavil to the proposition involved in the judgment cited by the learned counsel in support of his arguments, but the pivotal question would be whether a person if not qualified at the time of appointment if subsequently attained the qualification would still be considered disqualified to hold the post. The principle of pre-emption law that a pre-emptor retains loose the superior qualification till the date of passing the decree and a vendee defendant through improvement in his status can bring himself at par or at a better position to that of pre-emptor can defeat the pre-emptor to some extent will be applicable in the present case as respondent No,5 during the pendency of this petition imprinted his position and fulfilled the deficiency in the qualification required for initial appointment. It was held by the apex Court in case Dr. Muhammad Amin Durrani v. Government of West Pakistan through the Chief Secretary to the Government of West Pakistan, Lahore and another (PLD 1966 SC 99) as under:-- "The expression 'quo warranto' raises the question by what warrant a particular public office is held and this goes to the lawful authority behind the appointment. The power of making appointments to posts is vested in the Government, to be exercised directly or under delegations, made in compliance with law. Where the challenge is not raised to the exercise, in this respect, it would, in most conceivable cases, rest on allegations of non-compliance with statutory rules, or on violation of the terms and conditions applicable to the contestants. Where such violation is not of a term or condition 'specified in the Constitution' the relief under Article 98 is barred, and the petitioning public servant must be content with an appeal to the executive authorities."
The petitioner being no more suffering the disqualification to hold the post, the writ of quo warranto cannot be issued. Thus, the crucial date to determine the qualification of a person to hold a post is not only the date of appointment but also the date of issuance of the writ petition and if pending disposal of the writ petition, a person fulfils the qualification to hold such a post. writ of quo warranto is not to be issued against such a 'person. Reference may be made to Farzand Ali v. West Pakistan (PLD 1970 SC 98) and Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315).
I1. In the present case, the respondent No,5 pending disposal of the writ petition matured the experience required under the provisions of notification, dated 24-9-1989 read with the notification, dated 24-3-1997 issued by the Ministry of Environment, Local Government and Rural Development, Government of Pakistan in pursuance of sub-rule (2) of Rule 3 of Civil Servants (Appointment, Transfer and Promotion) Rules, 1973 for the appointments in the ENERCON. The method of appointment of post of Managing Director (BPS-21) prescribed through the notification, dated 24- 3-1997 for initial appointment by the Federal Government in supersession of the earlier method of appointment provided under notification, dated 23-11-1989 has not removed the disqualification attached therewith, if any. The contention of learned counsel for the petitioners that the writ of quo warranto can be filed by any person including a civil servant challenging the illegal appointment and that the illegal occupation of a public office is recurring wrong is not entertainable and the case law cited by him is not helpful to him in the facts of present case.
The appointment of the respondent No,5 was neither illegal nor without jurisdiction and the question that suitability was to be judged through the selection process and not by the competent Authority in his discretion has no force. As earlier observed, the appointment of Managing Director could be made by competent Authority in his discretion subject to the qualification through relaxation in experience and was not challengeable.
12.Be that as it may, the question whether the method of recruitment promulgated through notification, dated 25-11-1989 has taken away the discretionary powers of the appointment of Managing Director by the competent Authority under the resolution, dated 23-12-1986 still needs determination.
13.The examination of the notification in question shows that the same having been issued with the approval of Federal Government has equal status to that of Resolution and Rules framed thereunder will be considered to have been framed under the Resolution. However, in case of any conflict of the rules with the Resolution under which the same deemed to have been framed, the resolution will prevail and the rules to the extent of conflict will be ignored. In the present case, the condition of 20 years' experience for the appointment as Managing Director, was not provided under the Resolution empowering the competent Authority to appoint the Managing Director, the said conditions introduced through the rules will not undo the appointment made under the Resolution by the competent Authority of a suitable candidate. Thus, while exercising the power of judicial review, this Court is not supposed to assess and appraise the experience of an officer who having been found suitable and validly appointed by the competent Authority under the rules.
Consequently, attending the matter in detail, I do not find any force in the arguments of the learned counsel for the petitioner that respondent No,5 has no authority to hold the post of Managing Director.
14.The maintainability of this petition has been question by the learned counsel for the respondent No,5 on two-fold grounds:-- Firstly, the writ petitions challenging the appointment made in 1989 having filed in the years 1992 and 1995, with a delay of three years and six years respectively, suffered from laches; and Secondly, the petitioners were neither candidates for the post nor were, qualified to be appointed as Managing Director, therefore, they have no locus standi to question the appointment of respondent No,5, who having worked as Managing Director for the last nine years has attained a valuable right to hold the post and further as per contention raised by the learned counsel he being a civil servant, the matter relating to the terms and conditions of service is not adjudicateable by this Court in exercise of its Constitutional jurisdiction due to bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
15.In reply to the first objection, learned counsel for the petitioners argued that Dr. Sabir Mahmood, a colleague of petitioners in Writ Petition No,1049 of 1995, earlier filing writ petition No,224' of 1992, challenged the appointment of respondent No,5, therefore, pending disposal of said petition, the filing of second petition of the same subject in the year 1995 did not suffer from laches.
The institution of Writ Petition No,224 of 1992 in February, 1992 i,e, after more than two years of the appointment of respondent No,5, by Dr. Sabir Mahmood, an employee of the department, who was well within the knowledge about the deficiency of experience of respondent No,5 for appointment as Managing Director, kept silent for a considerable period. In such circumstances, the unexplained delay of more than two years would be considered as laches. It was held in case of Mohsan Khan and another v. Chief Settlement Commissioner, West Pakistan, Lahore and others (1969 SCM R 306) as under:-- "It is true that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them."
Thus, the Writ Petition No,224 of 1992 as well as the subsequent Writ Petition No,1049 of 1995 suffering from principle of laches are not maintainable.
16.Although the petitioners were not candidate to the post and also did not make any representation for their appointment as Managing Director, yet the Managing Director of ENERCON, being a public office, the appointment of respondent No,5 as Managing Director was questionable and the petitioners could competently file the writ petitions.
17. The appointment of respondent No,5 as Managing Director has been attacked on the basis of disqualification due to lack of requisite experience. The conditions for initial appointment at the time of first entry to a post does not fall within the definition of terms and conditions of a civil servant, which certainly relate to the matter subsequent to the appointment. Thus, the petitioners herein not disputing the appointment of respondent No,5 on the basis of any subsequent event to his appointment infringing their right of service cannot challenge the appointment of respondent No,5 before the Service Tribunal through an appeal under section 4 of the Service Tribunals Act, 1973. Consequently, the writ petitions on the subject are not barred under Art. 212 of the Constitution of Islamic Republic of Pakistan, 1973.
18. Reverting to the merits of the case, as observed earlier, respondent No,5 having considered a suitable persons, was validly appointed as Managing Director by the competent Authority in its discretion, therefore, his appointment as such being not challengeable, these writ petitions have no substance.
19. Further, as discussed earlier, respondent No,5 during the pendency of these writ petitions having acquired the requisite experience has fulfilled the necessary qualification, therefore, a writ of quo warrant cannot be issued against him.
20.In the light of foregoing discussion both writ petitions being devoid of force are dismissed with no order as to costs.