2013 PLP (C (PLC(CS))

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner invoked the constitutional jurisdiction of this court by way of filing instant writ petition with the following prayer:

"In the circumstances, it is Most respectfully prayed that by accepting this petition the respondents be restrained from taking any adverse action against the petitioner and in case they have already terminated the contract of the petitioner; the same action may be declared illegal, mala fide ultra vires without jurisdiction, void ab initio, unlawful and against the provisions of the constitution and be cancelled as such." And presented the facts as under:

2. That the petitioner retired from Pakistan Army in the year 2009, as Major General with meritorious service followed by his appointment as Managing Director Canteen Stores Department of the Pakistan Armed Forces (CSD). Subsequently, vide notification dated 28-11-2011, petitioner was appointed as Managing Director Utility Stores Corporations, for a tenure of two years and petitioner accepted the same assignment of heading the Utility Stores Corporation with a mission to reinvigorate the devastating and mismanaged Corporation. That to the utter surprise of petitioner, a ticker on different T.V. channels aired on disclosing that a summary has been accepted by Hon'ble care taker Prime Minister approving premature termination of the petitioner's contract for 2 years service. Learned counsel for petitioner contended that this act of care-taker Prime Minister falls outside his domain/mandate and totally unconnected with his mandate of holding fair elections, having no interest with duties entrusted to incumbent government. Therefore, the impugned action is liable to be struck down on the ground that according to law, a fixed term contract cannot be curtailed or terminated for any reason whatsoever except in cases of proved misconduct where such misconduct is established as a result of some enquiry associating the incumbent office. That, USC is a Private Limited Company duly registered with the Registrar of the Companies having its Articles of Association. Under Article 109, the petitioner can only be removed from his post in accordance with provisions of section 202 of the Companies Ordinance, 1984, therefore, any other procedure adopted by the respondents is ultra vires and not sustainable in the eyes of law and the impugned action is also a breach of Articles 10 and 14 of the Constitution of Islamic Republic of Pakistan. Learned counsel for petitioner argued that executive functionaries in the interim set up are not vested with any powers to take any major decision and they have to look after day to day affairs.

3. Learned counsel for petitioner drew my attention to ESTACODE, Serial No.141 which are policy guidelines for contract appointments for the post of Managing Director (BS-21) and put emphasis on clauses (iv) and (v) and submitted that due to these reasons the appointment of petitioner can be termed as in accordance with law. I have heard the learned counsel for petitioner as well as learned D.A.-G.

4. This court asked the learned counsel that if for the sack of arguments, it may be presumed that for Retired Army Officers prescribed criteria and conditions can be waived of then what is the criteria on the basis of which any Army Officer can be picked amongst the Army Officers? to which learned counsel replied that authorities can pick any one for this purpose. I afraid, this contention of the learned counsel is totally besides the organic law i.e. Constitution of the Islamic Republic of Pakistan and dictums laid down by the Hon'ble Supreme Court of Pakistan. Even otherwise policy circulated through establishment division office memorandum No.6/2/2000R.3 dated 6-5-2000 is offensive to the constitutional mandate, principles of natural justice and motivated to avoid appointments on merit and to oblige blue eyed persons, such policies are not less than political bribe. Even any statute having any provision offensive to the fundamental rights guaranteed by the constitution is of no value and affect, what to talk of any policy guidelines. The Constitution of the Pakistan ensures elimination of exploitation and not its promotion. The Army Officer after his retirement cannot be obliged merely on the ground that he was an Army Officer, as such having any preference over other citizens of Pakistan. All posts of Government owned organizations, corporations, companies and establishment etc. are required to be filled through competitive, credible, fair, open and transparent process and not on the basis of personal likings or disliking and in violation of the merit. Any Army officer selected through competitive process becomes entitle of appointment with full protection of law. The august Supreme Court through different authoritative pronouncements provided guidelines of the issue, following are being relied:

(i) Tariq Aziz-u-Din's case reported as 2010 SCMR, 1301. (ii) Amina Turab's case, reported as PLD 2013 SC 195. (iii) Muhammad Yasin's case, reported as PLD 2012 SC 132. (iv) Sh. Riaz-ul-Haq, case in Constitutional Petition No.53 of 2007 and Hajj Corruption reported as PLD 2011 SC 963, Another dictum laid down by apex court in the case of Muhammad Ali, reported as 2012 SCMR 673 is also applicable on the matter in hand. In this view of the matter and for the reasons that even otherwise, petitioner admittedly was appointed M.D Utility Stores Corporations through a contract, enforcement of which cannot be sought through writ petition, no exception can be taken to the impugned order. Instant writ petition is dismissed. The Secretary, Industries present in the court is directed to evolve competitive process for appointment of Managing Director (BS-21) which must commence with proper advertisement and be completed by 10th of May, 2013. It is further directed that till the appointment of regular Managing Director, through competitive process, the most senior regular employee of Utility Stores Corporation having requisite qualification and experience to be appointed as M.D, may be assigned task of Acting Managing Director, Utility Stores Corporation. SAK/92/Isl. Order accordingly.