2018 PLP (C (PLC(CS)N)

MALIK HAQ NAWAZ, J.

The brief facts giving rise to the present controversy are that the petitioners were appointed as provincial Secretary Pakistan Red Crescent Society, Disaster Management Manger and Provincial Program Officer respectively, on contract basis, which were extended from time to time. In the meanwhile respondent No.5 Tariq Hussain was appointed as Chairman Red Crescent Society vide Notification bearing No. G.Sectt-4(16)/2015 dated 31-08-2017, issued by respondent No. 4 which is now impugned by the petitioners before this Court. The respondent No. 5 issued termination order of petitioner No.1 on 30-11-2017 and issued notices to petitioner No. 2 and petitioner No.3 on 30-11-2017 and 17-12-2017 for termination of their services with effect from 31-12-2017.

2. Being aggrieved from the notices of termination, the petitioners have assailed the very appointment of respondent No. 5 on multiple grounds with the contention that the respondent being himself an ineligible person, was not competent to run the affairs of the Red Crescent Society and also to issue any order on administrative side.

3. The learned counsel for the petitioners submitted that appointment of the respondent No. 5 by respondent No. 4 has been made in utter violation of law and without merit, which needs to be set aside to meet the ends of justice. The learned counsel for the petitioners submitted that neither the said post was advertised nor the summery was floated by the concerned quarters i.e either Law Department or by GAD and Services. The learned counsel for the petitioners further submitted that the respondent No. 5 has a criminal back ground as he embezzled a huge amount, while holding a key post in press club and FIR No.11/2017 was lodged against him in Police Station Airport, which is still under adjudication. Lastly that the appointment of respondent No.5 be declared illegal, with all its legal consequences and termination orders dated 30-11-2017 and 17-12-2017 be declared illegal and without lawful authority. The learned counsel for the petitioners relied on 2001 YLR 1837, PLD 1989 Peshawar 124, PLD 2010 Lah. 546, 2010 PLC (C.S.) 1023, PLD 1990 SC 1092, 2013 PLC (C.S.) 1254 and PLD 2010 SC 61 in support of his contentions.

4. On the other hand the learned counsel for the respondent No.5 submitted that under the rules of business of Gilgit-Baltistan, Governor is competent to make such appointment as all these appointments are discretionary and are always according to sweet will of respondent No.4. The respondent No. 5 is an experienced and well educated person, who is running day to day affairs of the Red Crescent Society without any complain from either inside or from the outside donor's agencies. Per learned counsel, the petitioners have no locus standi to challenge the appointment of respondent No. 5 as they kept quite from August 2017 to December 2017 and only came forward when their contracts were to exhaust. Lastly that the writ be dismissed being not maintainable as the Pakistan Red Crescent Society is a non statutory body and a writ does not lie before the Chief Court in case of any violation as the terms and services of the employees are governed under the principles of "Master and Servant." Lastly that Article 85 of the Governance Order, 2009 provides complete immunity to respondent No. 4 (The Governor). Any action of respondent No. 4, while holding the office cannot be called in question in any Court of law. However the learned counsel for the respondent No.5 submitted that the matter could be settled between the parties amicably and the petitioners will be allowed to serve for a further period equal to their already rendered services and prayed that the instant petition be disposed accordingly.

5. We heard the learned counsel for the parties at length and perused record of the case made available by both the parties. It is pertinent to mentioned here that Pakistan Red Crescent Society Act, 1920 was made applicable to Gilgit-Baltistan vide adoption order dated 22-06-2007.

6. We are of the view that the parties cannot be allowed to drag the Courts of law in their affairs according to their own sweet will and use the Courts of law as a tool to settle their score. Chief Court being a Court of law, cannot allow a wrong to continue, even if the matter has been settled between the petitioners and respondent No.5. The main reasons that when initial appointment of respondent No.5 is itself illegal, how he can be allowed to settle down the issues with the petitioners, hence the request was turned down outrightly.

7. On last date of hearing principal Secretary to Governor and Dy. Secretary Law and Dy. Secretary S&GAD were directed to appear in person along with record of the summery floated to Governor. The Secretary Law and Prosecution Department, showed his complete ignorance about the initiation of any summery for appointment of respondent No. 5 and the Deputy Principal Secretary to Governor also informed the Court that he is not in a position to satisfy the Court, as the summery which was approved by respondent No.4 is not available in the office. However the learned counsel for the petitioners today i.e. 30.03.2018 during arguments provided a photocopy of notification No.G.Sectt.4(16)/2015 dated 31.08.2017, whereby respondent No. 5 was appointed as Chairman Pakistan Red Crescent Society.

8. First of all we would like to mention here that the respondent No. 4 does not enjoy blanket immunity under Article 85 of Self Governance and Empowerment Order, 2009. All Executive acts and deeds were to be done in good faith. The orders, notifications were to be issued in due and proper exercise of jurisdiction and strictly in accordance with law by application of independent and judicious mind, uninfluenced by motivation/consideration. Any action which is mala fide or colourable cannot be regarded as an action in accordance with law. Therefore action taken upon no ground, without proper application of mind will not qualify as an action in accordance with law. If an Executive authority has not exercised its authority for appointment in just, fair and transparent manner and breaching the trust vested in it, would be amendable to writ jurisdiction before Chief Court under Article 71(2) of Self Governance and Empowerment Order, 2009.

9. Article 85 of Self Governance and Empowerment Order, 2009 is synonymous to Article 248 of Constitution of Pakistan, 1973. Both these Articles are re-produced for the purpose of convenience. Article 248 of Constitution of Pakistan. Protection to President, Governor, Minister, etc.

(1). The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those function: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. (2). No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. (3). No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office. (4). No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims. Article 85 of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009. General provision regarding Governor and Ministers. (1). The Governor, the Prime Minister, a Minister, or an Advisor shall not:- (a) hold any other office of profit in the service of Gilgit-Baltistan or any other country; or (b) occupy any other position carrying the right to remuneration for the rendering of services; but this action shall not be construed as preventing the Governor, the Chief Minister, a Minister or an Advisor from holding or managing his private property. (2) No criminal proceedings whatsoever shall be instituted or continued against the Governor or the Chairman of the Council while he is in office. (3) No civil proceedings in which relief is claimed against the Governor or Chairman of the Council, shall be instituted while he is in office in respect of anything done or not done, by him in his personal capacity, whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which he claims. (4) Except in relation to proceedings referred to in clause (3) no process whatsoever shall be issued from any court or tribunal against the Governor or the Chairman of the Council, whether in a personal capacity or otherwise, while he is in office. (5) Subject to this Order, the Governor, the Chief Minister, the Chairman of the Council, the Federal Minister who is a member of the Council, a Minister or an Advisor shall not except in respect of anything done or not done by him in contravention of law, be answerable to any court or Tribunal in the exercise of the powers, or the performance of the duties, of his office or for any act done or purporting to be done by him in the exercise of those powers or in the performance of those duties: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Council or as the case may be, the Government.

10. We would like to make it clear that no court can compel either to President of Pakistan or Governor of a Province to exercise or not to exercise any power, to perform a duty or not to perform a duty. However, the immunity is personal to the President and the Governor as the case may. The next contention that whether a body is statutory body or not and in absence of statutory rules, whether jurisdiction of Chief Court could be invoked or not. We may mention here that an aggrieved person cannot be knocked out on technical grounds that remedy under Article 71(2) of Self Governance and Empowerment Order, 2009 is not available to him. If the above contention is allowed to prevail and remain operative in Gilgit-Baltistan, it will promote corruption, favoritism and nepotism and the illegalities/irregularities committed by public functionaries will go scott free. An aggrieved person can file a writ of quo-warranto to challenge the eligibility of a person, holding a public office, for which he was otherwise not eligible to be appointed and in such a case a Chief Court is competent to examine if statutory provisions have been violated in making the appointment of such person? The Court cannot close its eyes on the grounds of mere technicalities. The Chief Court under Article 71(2) has the powers to issue a declaration in respect of any act done or the proceedings taken within its territorial jurisdiction by a person performing functions in connection with affairs of a Province or a local authority, to be without lawful authority or of no legal effect. Even if for the sake of arguments, the immunity available to Governor is taken for guaranteed, then how an appointment of an ineligible person for an office/institution could be protected. The appointment of respondent No. 5 has been challenged on multiple grounds, which include his conviction by this Court on "Contempt of Court" proceeding and registration of criminal cases, which are still under trial. If the contentions of the learned counsel for respondents are allowed to prevail, it does not mean that the colourable or mala fide actions of Governor/President are immune from judicial scrutiny. An aggrieved person knocking the door of a court of law, cannot and should not be knocked out on mere technicalities. When an official act of Governor is challenged on the ground of mala fides, the immunity provided under Article 85 of Self Empowerment and Governance Order, 2009 cannot come for his rescue. It has been held in AIR 1999 SC 2979 that:- "Being essentially an order of the Government passed in exercise of its executive functions, it would be amendable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this court. The authenticity, validity and correctness of such an order can be examined by this court in spite of the order the order having been expressed in the name of the President. The immunity available to the President under Article 248 of the Constitution cannot be extended to the orders passed in the name of the President."

11. Mere fact that certain rules/regulations were framed without the approval of Federal/Provincial Government is not the sole criteria to term them as non statutory, but it was indeed their nature and area of efficacy which were determinative of their status. In the case in hand violation of any rules have not been challenged by the petitioners, they by dint of the instant petition have challenged the very appointment of Chairman Red Crescent Society, which could be challenged and adjudicated upon by Chief Court in its constitutional jurisdiction, as unaccounted exercise of unfettered powers was dangerous and even devastating for an institution.

12. Cherry picking and nepotism goes a long way to chop the very roots of meritocracy which ramifies into grave repercussions for the overall progress of a country and it has, have a telling effect on those general masses, who still pin their hopes in hard work, devotion and commitment. Appointing an ineligible person, in flagrant and wanton disregard of settled procedure, in itself is a despicable act, detrimental not only for the one being victimized but for the general society as well, because selection of such blue eyed boys, whose bag of tricks is full of sordid tools, in most of the cases emerge triumphant among those competitors, who can neither pull strings nor have friends at the Court.

13. Unbridled exercise of authority by the one's sitting in the corridor of powers and casting the dice in favour of an incompetent and ineligible person lucidly drops an inkling of an underhand job in the selection process. Such highhandedness cannot be taken leniently by a Court, which sits as a custodian of fundamental rights of the masses. The appointment of Mr. Tariq Hussain if seen in the contexts of the contentions given tongue in the instant writ petition seems illegal on all counts. Since it has come the respondent's way, while toppling and trampling the requisite qualifications, experience and expertise required in the said regard, resultantly the appointment of respondent No. 5 is hereby declared illegal, unwarranted and without lawful authority. All the actions taken and orders issued by respondent No. 5 in his official capacity after 31.08.2017 as a Chairman Red Crescent Society Gilgit are declared illegal, unwarranted without lawful authority and void ab initio. The Deputy Commissioner Gilgit will take over the charge of office of Chairman Red Crescent Society forthwith till the appointment of eligible and competent person through proper procedure. A copy of this judgment be immediately sent to Chief Secretary Gilgit-Baltistan and Deputy Commissioner Gilgit for information/compliance.

14. Since appointment of Mr. Tariq Hussain had been declared void ab-initio, therefore, all the orders issued by him after 31-08-2017 as a Chairman Red Crescent Society including the terminations orders of the petitioners are declared illegal and without lawful authority.

15. Writ Petition No. 269/2017, C.M. No. 540/2017, COC No.2/2018 and C.Misc. No. 27/2018 are disposed off accordingly. Files be consigned to record after completion. ZC/147/GB Petition accepted.