2023 P L C (C.S.) 1218
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
Dr. SHAHID AMIN
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security
and Research and another
C.P. No.76 of 2021, decided on 31st of March, 2021.
Constitution of Pakistan ---
----Art.199--- Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015,
Sched I, Para. 6 ---Constitutional petition ---Recommendations of the Board to the Competent
Authority--- Scope ---Petitioner impugned fresh recruitment process i.e. constitution of new
scrutiny committee for short listing and interview process ---Respondents had invited
applications for the post of Chief Executive Officer (CEO)through publication from all over Pakistan ---Petitioner along with 22 others being qualified candidates had applied for the
post---Respondents after shortlisting 10 candidates out of 23 candidates had issued interview
calls ---Interview was conducted as per schedule and the petitioner was placed at 1st position
while two others were placed at 2nd and 3rd position--- Candidates were recommended for
approval of Board of Directors ---Matter remained pending before the Board of Directors, but
all of sudden the petitioner received another interview call from the respondents to appear in interview afresh ---Contention of respondents was that the Board of Directors had not
approved the recommendations ---Validity ---Decision of the Board of Directors seemed to be
based on mala fide intention just to add and accommodate certain blue eyed candidates, while nothing was brought on record to ascertain the reasons for recalling the interview process ---Constitutional petition was accepted, in circumstances, process of fresh
appointments was declared to be illegal and the earlier process was directed to be finalized.
Kamran Murtaza, Muhammad Rauf Atta and Adnan Ejaz Sheikh for Petitioners.
Syed Iqbal Shah, D.A.G. and Shahid Baloch, Additional A.G. for the State.
Dr. Zahid -ul-Quddus Bhutta, Technical Officer, LDDB, Islamabad.
Date of hearing: 15th March, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ----The instant Constitutional Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the
following prayer:
1. Declare that impugned fresh recruitment process i.e. constitution of new scrutiny Committee for short listing and interview process, and cancellation of earlier recommendation based on merit and fairness, are illegal and based on political consideration, nepotism and favoritism;
2. Suspend the letter No.LDDB/Admin/in the interest of justice, equity and fairplay. -
CEO/20 dated 18th January 2021.
3. Restrain the respondents from initiation of fresh recruitment process of CEO, LDDB.
4. Direct the respondent No.2 to place the recommendation before the controlling
authority (respondent No.1) for concurrence and notification, to save the future of the qualified, competent, talented and eligible candidate;
5. Grant any other relief to which the petitioners are found entitled or which is deemed just and proper by this Hon'ble Court in the facts and circumstances of the case.
2. Facts of the case are that Public Sector Companies (Appointment of Chief Executive)
Guidelines, 2015 ("the guidelines of 2015"), provides for appointment of Chief Executive in accordance with the procedure specified in Schedule -I of the same, which further provides
that at least 3 months before the expiry of term of incumbent Chief Executive, the office of respondent No.1 i.e. Ministry of National Food Security and Research, Islamabad ("NFSR"), shall initiate the recruitment process of new incumbent. Sin ce, the respondent No.2 i.e.
Livestock and Dairy Development Board ("LDDB") requires the services of Chief Executive Officer, thus the respondent No.1 issued a public advertisement dated 30th October, 2020 in
Daily Express seeking applications from interested and qualified candidates for the said position, as such, the petitioner along with certain other qualified candidates applied for the same, whereafter the LDDB in its 34th Meeting held on 7th December 2020 constituted short -listing Committee and on 14t h December 2020 the said Committee out of 23 candidates
short -listed 10- candidates including the name of petitioner, whereafter under the
Chairmanship of Secretary NFSR including four members the Interviewing Committee was constituted and the said Interview Committee also called the Animal Husbandry Commissioner for technical assistance. Accordingly, the petitioner and other short -listed
candidates appeared before the Interviewing Committee and the petitioner got 1st position with highest marks of 87 out of 100 and the name of the petitioner found place at S.No.8 of
the interview mark sheet. Ultimately, the Committee recommended the names of three candidates and the name of petitioner was listed as principle candidate and subsequently the petitioner came across with the newspaper statement that the Board has approved the name of the petitioner through circular, as such, the petitioner was waiting that his name will also be approved by the board by sending the recommendations to the respondent No. 1 for concur rence as per rules and notification accordingly, but it is surprising and shocking for
the petitioner when through news clipping appeared in daily Jang Rawalpindi dated 17th January 2021, that the already conducted interviews have been cancelled and new scrutiny Committee will short -list the candidates and interview the candidates afresh on 23rd January
2021. Besides, it has also come into the knowledge of the petitioner that certain other candidates being favorable have also been included in the list of al ready shortlisted
candidates by newly constituted committee with malafide intention to accommodate them
and to deprive the petitioner of his due right to be posted against the post of CEO, LDDB. Whereafter, on 18th January 2021 the petitioner received an interview call letter for the post of CEO, LLDB, but the fact remains that the petitioner has already got 1st position in interview and the Board was bound to place the recommendations to the controlling
authorities for concurrence as per rule and notification. It has also been averred in the
petition, that the petitioner was shortlisted after short -listing process and he was accordingly
interviewed by the Interview Committee, but without any rhymes or reasons such process
was cancelled and fresh process is being initiated just to accommodate the blue eyed persons.
3. The petition was admitted for regular hearing and accordingly Notices were issued to
the respondents, who filed parawise comments, wherein vehemently opposed the claim of petitioner.
4. Learned counsel for petitioner contended that the petitioner is well -qualified and
educated person, his name was short listed by the legally constituted committee for appointment as Chief Executive Officer, LDDB, and after Interview he obtained 87 marks out of 100, thus accordingly he stood at 1st position of the merit list, thus the Board was required to send the name of the petitioner to the respondent No.1 for issuing the appointment orders, but just to accommodate a favorable candidate, the entire appointment process was cancelled and fresh recruitment process is being initiated, which otherwise is illegal and amounts to deprivation of the petitioner. It has further been contended that no solid or concrete reasons have been furnished by the respondents suggesting that as to what was the basis to cancel the previous process of recruitment, thus prayed for setting aside the entire fresh process and directing the respondent No.1 for issuing the appointment orders of
the petitioner.
5. Learned Deputy Attorney General and learned Additional Advocate General
contended that the respondents followed the same guidelines as provided in the guidelines of 2015, however, the recommendations of the Committee were circulated to the B.O.D. for approval, but the B.O.D. in its 35th meeting have unanimously disagreed with the recommendation as per the Guidelines of 2015, which empowers the B.O.D. to 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, thus as per decision of the B.O.D. the process of interviews was re -initiated and as per law no
permission is required from the SECP for such purposes rather the B.O.D. has authority to amend its decision. It has also been contended that the respondents are implementing the decision of the B.O.D. and there is nothing personal or malafide against the petitioner.
6. Heard the learned counsel for parties and perused the record which reveals that the
respondents invited applications for the post of CEO, Livestock and Dairy Development Board through publication from all over Pakistan the petitioner along with 22 others being qualified candidates applied for the said post, the respondents after shortlisting 10 candidates out of 23 candidates issued interview calls on 14th December, 2020 to each candidate calling them to appear before the committee comprising of following members:
"a) Secretary -NFSR Chairman
b) Muhammad Tayyab Member
c) Dr. Jaimal Dhanani Member
d) Dr. Nuzat Qasir Member
e) Dr. Alam Zeb Member"
7. The meeting was held as per schedule on 21st December, 2021 at 1000 hrs in the
Ministry of National Food Security and Research, Islamabad the petitioner along with 9
others participated in the interview and the petitioner obtained highest marks i.e. 87 and stood at 1st position in the interview, accordingly the interview committee recommended the name of petitioner as principal candidate, while candidates stood at 2nd and 3rd position were also stood at serial 2 and 4 of the merit list and the following three candidates were recommended for approval of B.O.D. in its 34th meeting through circular before placing them to the controlling ministry for concurrence as per rules and notification. The matter was remained pending before the B.O.D., but all of sudden on 18th January, 2021 the petitioner received another interview call from the respondents to appear in interview afresh on 23rd January, 2021 at LDDB Office NARC, Islamabad which was assailed by the petitioner before this Court through C.M.A. No. 120 of 2021 and the operation of interview was suspended.
8. While, the respondents submitted their parawise comments mentioned in reply of para
No.9 that, "the recommendation committee was circulated to the B.O.D. for approval. However, B.O.D. did not approve it and the same is mentioned in news clipping as well as
Annexure -A ", whereas, perusal of Annexure -A is a news item appeared in unknown
newspaper, while Annexure -2 is the minutes of 35th BoD Meeting dated 15th January, 2021,
the agenda item No.1 and agenda item No.II are reproduced as under:
"Agenda Item - I Confirmation of Minutes BoD Meeting
Company Secretary informed that 34th BoD meeting was held on 7th December, 2020. Minutes of the meeting were circulated to all board members for their comments/observation under Article 6(4) CGR, 2013 after approval of the Chairman. He added that no comments or observations were received from the members and requested board to confirm the minutes of the meeting.
Agenda Item - II Briefing on Appointment of CEO, LDDB.
The Chairman briefed the members about the appointment of CEO and invited the opinion of the members about the whole process.
Dr. Afzal was of the opinion that there were some flaws in the shortlisting process as some of the eligible candidates were not called for interviews, to avoid litigation and legal complications the shortlisting and interviews may be done afresh which was agreed by the Chairman.
Mr. Khurshid Qureshi, requested the Chairman to send the Company Secretary out of
the meeting which was supported by majority of members and agreed by the
Chairman. Mr. Aziz Ahmed Lashari A.O, LDDB was called to take the minutes of the meeting. It was decided that the Company Secretary will be out the whole process of appointment of CEO along with the Board meeting proceedings till further orders. It was decided to revert him back to his original position with present grade and
financial emoluments. Admin Officer was directed to manage the process of
appointment of CEO along with Board proceedings as company secretary till further
order.
The chairman advised that all board members will act as shortlisting committee today and the eligible candidate will be called for interview on Saturday (23rd January 2021). He added that Mr. Muhammad Afzal will act as coordinator for shortlisting of candidates by this board today.
The Board examined the data sheet of all 23 candidates in detail and shortlisted
following 12 eligible candidates:
1. Dr. Aamar Bin Zahoor
2. Dr. Shahid Asghar Haider
3. Dr. Mohisn Kiani
4. Dr. Ghulam Hussain Buhtta
5. Dr. Wajid Arshid Khan
6. Brig. Muhammad Akhtar
7. Brig. Dr. Mehboob Ahmed Butt.
8. Brig. Rana Faheem Sakhawat Ali
9. Malik Ayaz Khan
10. Dr. Shahid Amin
11. Brig. Dr. Zahid Iqbal
12. Dr. Naveed Ahmed Khan Niazi.
List of the all candidates with reasons for not being shortlisted duly signed by all
members is at Annex- I Board directed Admin Officer to issue call letters to the
shortlisted/eligible candidates for their interviews on 23rd January, 2021 at 1030hrs at LDDB office, Islamabad."
9. The perusal of aforesaid agenda items of 35th B.O.D. meeting seems to be based on
mala fide intention just to add and accommodate certain blue eyed candidates, while nothing brought on record what was the observations and reasons made in 34th B.O.D. meeting, to be based for conduct of fresh interviews of the candidates. Even otherwise, the minutes of 34th B.O.D. meeting were not brought on record to ascertain the reasons of recalling the interview process, such practice of the respondents entirely render ed the fresh process of the interviews
as mala fide, colourful and without lawful authority, for the reasons of recalling of selection process there is clear cut rule provided in the schedule- I, paragraph 2 of the Public Sector
Companies (appointment of CEO) guidelines 2015, rule 6 of the ibid rules (guidelines) is
reproduced as under:
"6. Recommendations 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 we shall be forwarded to the line ministry for information and perusal.
3. If the line ministry does not concur to appoint any of the proposed candidates, it shall highlight the reasons for non- concurrence and refer the matter back to the public
sector company for reconsideration and with the direction to identify additional/alternative candidates. (Underlined for emphasis)
4. The Board may either re -evaluate the candidates from the pool of available
applicants or reinitiate the appointment process, if none of the shortlisted candidates in found fit and proper for the position.
The candidate shall be recommended to the line ministry in the order of preference based on the result of evaluation."
Wherein sub -rule (3) of rule 6 it is categorically mentioned that if the line ministry
does not concur to appoint any of the proposed candidates, it shall highlight the reasons for non- concurrence and refer the matter back to the public sector company for reconsideration
and with the direction to identify additional/alternative candidates. So thereafter the board will be in a position either to re -evaluate the candidates from the pool of available applicants
or re -initiate appointment process, if none of the shortlisted candidates is found fit and
proper for the position.
10. Bare perusal of aforesaid rule clearly indicates that the same is violated by the
respondents, while ignoring the recommendations of the committee, whereby a penal of three candidates including the petitioner was forwarded to the board in its 34th meeting for approval, and according to procedure the recommendation should have been forwarded to the ministry and the ministry was empowered either to concur the appointment of CEO or in case of non- concurrence highlighting the reasons and referred the matter back to the public sector
company for re -reconsideration, with directions to identify the additional/alternative
candidates, but unfortunately this method was not applied in the case in hand; thus, rendered the entire proceedings of the respondents as illegal, unlawful and without any legal effect.
11. Thus, in view of the above, the petition is accepted and the process of fresh interviews
of the candidates and subsequent proceedings carried out therein by the respondents are declared illegal, unlawful and without legal effect.
With further declaration that the process, which was discontinued after 21st
December, 2020 is deemed to be pending before the competent forum with directions to finalize the process as per the recommendations of interview committee held on 21st December, 2020, positively within a period of one month from the date of pronouncement of this judgment
SA/142/Bal. Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.