' NASIR ASLAM ZAHID, J.---Petitioner Syed Fazal-e-Mahbood has filed this petition assailing the judgment, dated 11-11-1999 of a learned Single Judge of the Lahore High Court holding the appointment of the petitioner as Chairman, Agricultural Development Bank of Pakistan ADBP), as illegal and directing Bankers Equity Limited to return all the investments of ADBP still lying with it with interest/ profit at the agreed rate within one month. We have heard the arguments of Mr. S.M.
Zafar, learned Senior Advocate Supreme Court for the petitioner, Mr. Muhammad Ibrahim Satti, learned Advocate Supreme Court for respondents Nos.5 and 6 and Mr. Mansoor Ahmed, Dy.A.-G., who appeared on notice and also represented the Government of Pakistan, respondents in the proceedings. We have been taken through relevant record by the learned counsel.
2. Four writ petitions were filed against the petitioner and others which were all disposed of by the High Court by its common judgment, dated 11-11-1999. In the impugned judgment relevant facts, reliefs claimed in the writ petitions and contentions on behalf of the parties before the High Court have been given as follows:-- "It is proposed to decide Writ Petitions Nos.2583 of 1999, 6367 of 1999, 9310 of 1999 and 13420 of 1999 through the common judgment as the same are inter-linked.
2. The relevant facts that respondent No,2 was Senior Executive Vice-President in Habib Bank Limited (hereinafter to be referred as H.B.L.). He availed L.P.R. For 721 days with effect from 7-6-1997 to 27-5-1999. He was appointed as Chairman of the respondent Bank vide Notification of the Finance Division, dated 31-12-1997 on contract basis for a period of 2 years. He assumed the Office of Chairman, Agricultural Development Bank of Pakistan (hereinafter to be referred as A.D.B.P.) on 1- 1-1998 while his status was still under determination. H.B.L. Notified that he was on leave and on attaining the age of superannuation he will retire on 27-5-1999, the date when his leave would come to an end. The A.D.B.P. Notified vide Notification, dated 7-1-1998 Annexure 'B' that respondent No,2 has assumed the charge of Chairman. The negotiations between the H.B.L. And Finance Division for the terms and conditions were still going on as was clear from letter, dated 18/20-4- 1998. However, in the meanwhile, Executive Director (Personnel) A.D.B.P. Notified vide memo dated 9-3-1998 addressed to the H.B.L. That the appointment from 1-1-1998 may be treated on deputation for the purposes of his pay, allowances, facilities and other fringe benefits till further orders.
Thereafter, A.D.B.P. Would send bills in respect of salary etc. Of respondent No,2 to H.B.L., who would reimburse the same. The petitioners through this Constitutional Petition have challenged the appointment of respondent. No,2 as Chairman. The petition was admitted to hearing and notices were issued to the respondents, who are represented.
3. The learned counsel for the petitioners argued that respondent No,2 was an employee of H.B.L., therefore, as per Rule 100 of Habib Bank Staff Service Rules, 1981 (hereinafter to be referred Rules of 1981) he could not accept posting elsewhere during the employment with H.B.L. It was added that although the appointment of respondent No,2 was not only treated on deputation but the salary etc. Was paid by the H.B.L. Till 27-5-1999, when respondent No,2 attained the age of 60 years and retired from H.B.L., therefore, he could not continue as Chairman. A.D.B.P. After this date. It was argued that the appointment on deputation was not approved by the competent Authority i,e, Prime Minister. Therefore, he had been illegally and mala fidely receiving salaries and other benefits from the H.B.L. In any case the appointment came to an end on 27-5-1999 and thereafter, he was illegally continuing as Chairman of the A.D.B.P. Again without any permission or order of the competent Authority. It was argued that the appointment, assumption of office and continuation as Chairman was all fraudulent, therefore, petitioners had prayed for declaration that the appointment of respondent No,2 and continuing as Chairman be declared illegal, unlawful, against rules and policies of the Government.
4. Before the filing of this petition (Writ Petition No,13420 of 1999) the petitioners Nos.1 and 2 had filed W.P.No,2583 of 1999 with the prayer that respondent No,2 illegally invested the G.P.Fund etc. Of the employees in the Bankers Equity Limited (hereinafter to be referred as B.E.L.), therefore, the same may be directed to be withdrawn forthwith and deposited in one of the known scheduled banks.
The third W.P. No,6367 of 2000 was filed with the prayer that there was six Trust Funds and respondent No,2 illegally invested the same with the B.E.L. It was argued that he negotiated for deposit of Rs,80 Million whereas only Rs,13 Million were available in the account. It was added that he was only trustee and had no power to invest the amount with the B.E.L. Be directed to return the amount. The last petition in the series was W.P. No,9310 of 1999 filed by ljaz Ahmed. It was complained that respondent No,2 has been receiving an amount of Rs,14,155 with effect from 1-1- 1998 towards the salary of domestic staff whereas the staff was supplied by the A.D.B.P. And not engaged by him. It was added that he was availing the transfer facility etc. From A.D.B.P. But at the same time charging H.B.L. For 500 litres. It was argued that there was audit objection which the respondent using his influence hushed up the matter.
5. The learned counsel for respondent No,2 argued that his client was appointed on contract basis and he was entitled to continue for a period of 2 years till 31-12-1999. It was argued that the writ petitions were all mala fide. Earlier one Shafi filed W.P. No,1862 of 1999 against his appointment and the same was dismissed by this Court. It was added that the Federal Government has the absolute power under section 10 of the Agricultural Development Bank Ordinance, 1961 (hereinafter to be referred as Ordinance of 1961) to appoint a Chairman. It was argued that H.B.L. Issued the N.O.C. On 13-7-1998, therefore, his appointment was regularized. It was added that respondent No,2 was enjoying the same terms and conditions which were available to him as Senior Executive Vice- President. He was not allowed Deputation Allowance, therefore, not getting anything over and above the emoluments entitled to as officer of the H.B.L. And after retirement his employment being on contract basis he was continuing legally as Chairman, A.D.B.P. It was argued that the B.E.L. Was a Government Bank and even earlier amounts were invested with the Bank. It was added that the B.E.L. Was offering interest at a higher rate than other Banks, therefore, the amounts were invested with said Bank and when the Finance Division did not approve the same the amount together with the interest was retrieved. It was argued that till 27-5-1999 A.D.B.P. Was claiming reimbursement from the H.B.L. And there was no question of receiving salaries of domestic staff illegally and fraudulently."
' In the impugned judgment certain observations have been made against the petitioner in respect of the allegations against the petitioner but the writ petitions were disposed of as under:-- "The result is that the appointment of respondent No,2 (petitioner herein) as Chairman, A.D.B.P. Is declared illegal while Bankers Equity Limited is directed to return all investments of the A.D.B.P. Still lying with it with interest /profit at the agreed rate within one month."
3. Mr. S.M. Zafar learned counsel appearing for the petitioner submitted that the petitioner is mainly challenging the judgment as regards his appointment as Chairman, A.D.B.P. In so far as the investments of A.D.B.P. With Bankers Equity Limited are concerned, it was informed that all the investments with profits have been refunded to A.D.B.P. We are also of the view that the only question which requires determination in this petition is about the validity or otherwise of appointment of the petitioner as Chairman of A.D.B.P. In so far as the other three writ petitions are concerned, the High Court itself has held as follows:--- "It is not possible to adjudicate on the allegation of breach of trust, misappropriation and misuse of the bank funds. Let copy of the judgment be sent to Secretary-General, Finance Division, Government of Pakistan, Islamabad, for information and necessary action as deemed proper:"
' It may be observed that present petition has been filed only against the judgment of the High Court allowing Writ Petition No,13420 of 1999 holding the appointment of the petitioner as illegal.
4. As observed in the impugned judgment, petitioner was appointed as Chairman of A.D.B.P. Vide Notification, dated 31-12-1997 of the Finance Division. The said notification of the Government of Pakistan, Finance Division (Internal Finance Wing), published in the Gazette of Pakistan reads as under:-- "No,F.3(8)/IF-1/94-1252.--The Competent Authority has been pleased to appoint Mr. S. Fazal-e- Mahbood (SEVP.HBL) as Chairman, Agricultural Development Bank of Pakistan on contract basis with immediate effect for a period of two years vice Mr. Ghulam Farid Abbasi."
' This notification was issued by the Federal Government under section 10 of the Agricultural Development Bank Ordinance, 1961 (Ordinance IV of 1961) which provision reads as follows:-- "10. Chairman.--(1) The Chairman shall be appointed by the Federal Government for the period not exceeding five years on such salary and terms and conditions of service as the Federal Government may determine: ' Provided that the salary and other terms and conditions of service of the Chairman shall not be varied to his disadvantage during his tenure of office.
(1-A) The Chairman shall on the expiry of his term of office be eligible for reappointment.
(2) The Chairman shall be the chief executive officer and shall on behalf of the Board direct and control the whole affairs of the Bank subject to such rules as the Federal Government may make."
' Issuance of the said Notification, dated 31-12-1997 under section 10 of the 1961 Ordinance by the competent Authority and its validity have not been questioned. The High Court also, in the impugned judgment, has not held the said notification to be invalid or defective in any manner.
However, we may observe here that according to Mr. Muhammad Ibrahim Satti, learned counsel for private respondents Nos.5 and 6 (two of the four petitioners who had filed Writ Petition No,13420 of 1999 in the Lahore High Court) submitted that petitioner was not a suitable person to have been appointed to such a coveted post, Chairman of A.D.B.P., on account of his illegal and improper activities in the discharge of his duties as the Chairman. This could not be a valid ground for challenging the vires of the notification in question. Learned counsel for the private respondents did not point out any legal or other infirmity in the said notification .
5. According to the High Court, the appointment of the petitioner was void ab initio having been made in violation of Rule 100 of the Habib Bank Staff Service Rules, 1981, as also in disregard of A.D.B.P. Ordinance, 1961. Rule 100 of the Habib Bank Limited Staff Service Rules, 1981 reads as follows:- - "Employee not to accept employment or office of profit during leave:-- ' An employee on leave shall not accept any employment or office of profit without obtaining prior permission of the competent Authority."
' The admitted position is that at the relevant time petitioner was on L.P.R. While in service of Habib Bank Limited, which leave was to expire on 27-5-1999, the date of his retirement. There is nothing on record to show that Habib Bank Limited had not consented or agreed to the appointment of petitioner as Chairman of A.D.B.P. Even otherwise there was no embargo on the Competent Authority to appoint petitioner as Chairman of A.D.B.P. While exercising power under section 10 of A.D.B.P. Ordinance, 1961. Even if such appointment had been made without consent of Habib Bank Limited at the most it would have affected the service of the petitioner with Habib Bank Limited but Rule 100 of Habib Bank Limited (Staff) Service Rules, 1981, could not render invalid the appointment of the petitioner as Chairman of A.D.B.P. Made by the Competent Authority under section 10 of A.D.B.P. Ordinance, 1961.
' The High Court also came to the conclusion that the appointment of petitioner as Chairman was void ab initio having been made in utter disregard of A.D.B.P. Ordinance, but no reasons appear in the impugned judgment for reaching such conclusion. Notification, dated 31-12-1997 is not even found or held to be invalid and no valid reasons can be spelt out from the High Court's judgment as to how such appointment by the Competent Authority was void or invalid, Of course, reference has been made to Rule 100 of H.B.L. Staff Service Rules, 1981, about which we have already held that such rule could not render invalid the appointment of the petitioner as Chairman of A.D.B.P.
' The only other reference in this context is to a decision of the Lahore High Court in the case of Shahid Islam v. NIRC (PLD 1966 Lah. 615). The said judgment is not relevant on the point in issue. In the cited judgment, appointment of respondent as Member of N.I.R.C. Was declared to be without lawful authority and void ab initio on the ground that he lacked qualifications prescribed in the law for such appointment. There was no challenge to the appointment of petitioner as Chairman on the ground that he lacked any qualification prescribed by any law or rules.
6. The High Court held that order/letter, dated 9-3-1998 of the Executive Director of A.D.B.P. As invalid on the ground that the Executive Director had no authority in law to convert the order of appointment of the petitioner as Chairman of A.D.B.P. On contract basis into that of deputation. The letter of the Executive Director, dated 9-3-1998 addressed to H.B.L. Reads as follows:-- "Appointment of Syed Fazal Mahbood as Chairman, A.D.B.P. Dear Sir, ' Syed Fazal-e-Mabood (SEVP, HBL) was appointed by the Federal Government as Chairman, Agricultural Development Bank of Pakistan on contract basis for a period of two years and he has taken over as Chairman on 1st January, 1998 in terms of Finance Division, Internal Finance Wing O.M.
No,F.3(8)/IF-1/94-1252, dated 31-12-1997. Since 1-1-1998 he may be treated on deputation for the purpose of his pay, allowances, facilities and other fringe benefits till further orders."
' In the above letter of A.D.B.P. Addressed to H.B.L., reference is made to the appointment of the petitioner as Chairman on contract basis by the Competent Authority for a period of 2 years and H.B.L. Was informed that for purposes of his pay, allowances, facilities and other fringe benefits he may be treated on deputation since 1-1-1998. This letter of A.D.B.P. Addressed to H.B.L. Does not and could not, in any way, affect the order of the Competent Authority appointing the petitioner as Chairman of A.D.B.P. For 2 years on contract basis under section 10 of A.D.B.P. Ordinance, 1961. The letter was written in relation to petitioner's emoluments and facilities and for that purpose H.B.L.
Was informed that the petitioner may be treated as if he was on deputation. The High Court erred in holding that for such purpose consent or order of the Prime Minister was required.
7. The High Court further went on to hold that as the petitioner stood retired from service of H.B.L. On 27-5-1999 on attaining the age of superannuation, he could not continue as Chairman of A.D.B.P.
Without a further order of the Competent Authority. We are unable to agree with the view taken by the High Court. As noted, the Competent Authority appointed the petitioner as Chairman of A.D.B.P.
On contract for 2 years which period is expiring next month on 31-12-1999. At the time the appointment was made, petitioner was on L.P.R. While in service of H.B.L. Such appointment by the Competent Authority under section 10 of the Ordinance of 1961 was not found to be invalid. The mere fact that the petitioner stood retired on 27-5-1999 on reaching the age of superannuation, while being on L.P.R. With HBL could not affect his appointment as Chairman of A.D.B.P. By the Competent Authority under section 10 of the 1961 Ordinance. In our view it was not necessary that after 27-5-1999 a further order by the Competent Authority was required.
' We may observe here that Mr. Mansoor Ahmed, learned counsel Dy.A-G., who has appeared on behalf of the Federal Government on being asked, informed the Court that he has written instructions from the Federal Government that petitioner was validity appointed for a period of 2 years, which period will expire on 31-12-1999.
8. Mr. Muhammad Ibrahim Satti, learned counsel for the private respondents Nos.5 and 6, vehemently submitted that petitioner could not be appointed as Chairman and in any case his appointment could not continue on account of his illegal and improper acts while discharging his duties and functions as Chairman of A.D.B.P. As observed, no challenge has been made to the initial appointment of the petitioner by Notification, dated 31-12-1997 as Chairman, A.D.B.P. In any case, nothing has been shown or pointed out as to how such appointment made under section 10 of A.D.B.P.Ordinance, 1961 was invalid. If after becoming Chairman, A.D.B.P., in discharge of his duties/ functions, petitioner had acted in any illegal or improper manner, such actions could not ipso facto affect the legality of his appointment. Of course, the concerned authorities cap always take requisite action under the law .
9. In the circumstances, this petition is converted into an appeal which is allowed and the impugned judgment, dated 11-11-1999 of the Lahore High. Court allowing Writ Petition No,13420 of 1999 is set aside with no order as to costs.
' Before parting with this judgment, we consider it necessary to draw attention to a very unhealthy practice which is common and that is when a case involving an official or employee or union of an institution, concern, Government or Authority is fixed for hearing before any Court, large number of officers/ employees of such body make it a point to attend the Court proceedings with the apparent intention of expressing their support or opposition for one party or the other. Except for those officers/ employees who are . Parties to the proceedings, who may attend the Court with permission of the competent Authority by taking leave, the practice of other officers/ employees attending proceedings and that also without taking any leave from their institution is strongly deprecated. Such practice is not only against the Service Rules and conditions being absence without leave it also affects working of the institution to which they belong as no work is done by such officers/employees on the day of hearing to the great loss and prejudice for their institution as well as the country, and the public is also adversely affected as while approaching the concerned institutions on such days they find that their work cannot be attended to on account of the concerned staff being absent having gone to attend proceedings in which they are not parties.