The appointment of the Chairman of the PTA is in violation

ISLAMABAD ( SPECIAL REPORT)

The appointment of the Chairman of the Pakistan Telecommunication Authority is in violation of The Pakistan Telecommunication (Re-organization) Act 1996, and merit based prescribed criteria (which were previously followed and notified by the Federal Government).The appointment of Chairman PTA is based upon nepotism, favoritism, and personal whims and wishes suppressing law and merit based criteria, holding field for such appointments. This stated in rit petition file by Shah Khawar Adovcate in supreme court. The petitioner Qasim abbasi praye  that the Appointment of the present Chairman PTA (Respondent No. 5) may be declared illegal, void, unconstitutional, violative of the recognized process of recruitment and in gross violation of the Pakistan Telecommunication Re-organization Act 1996 and the same be struck down, in the interests of justice.

 H e said in his petition that Any appointment based upon political consideration, lack of competence to hold this office, and merit based criteria would result in depriving citizens of their fundamental rights guaranteed by Articles 9, 14, 18, 23 and 24 of the Constitution.

The appointment of the incumbent Chairman PTA is in violation of Section 3 (2) of The Pakistan Telecommunication (Re-organization) Act 1996 which stipulates that the Authority shall consist of three members, one of whom shall be a professional telecommunication engineer and other shall be a financial expert and the Federal Government shall from amongst the members, appoint a member to be the Chairman of the Authority.

The appointment of present Chairman PTA is a colorful exercise carried out by the competent Authority whereby the Respondent No. 5 at the relevant time posted as Acting Secretary, IT & Telecom Division, was transferred and posted as Member PTA on 28th of July, 2012 by Respondents No. 2 and 4, and was notified as  Chairman PTA on the 31st of July, 2012 within a short span of only 3 days without advertising the post of Member PTA, without open competition and in gross violation of Federal Government’s notified criteria in the wake that the appointments for the posts of Members PTA in the past had been carried out through advertisements in the press leading to short listing of candidates, interviews by the Selection Board and Prime Minister’s approval based upon the board recommendations.

 In these circumstances it is therefore respectfully prayed that the instant constitutional Petition may be allowed. The Appointment of the present Chairman PTA (Respondent No. 5) may be declared illegal, void, unconstitutional, violative of the recognized process of recruitment and in gross violation of the Pakistan Telecommunication Re-organization Act 1996 and the same be struck down, in the interests of justice.

 

Barrister Qasim Nawaz Abbasi S/O Haq Nawaz Abbasi, Resident of House No.D-793, Satellite Town, Rawalpindi.

…Petitioner

Versus

The Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan.

Establishment Secretary to the Government of Pakistan, Establishment Division, Pak Secretariat, Islamabad.

Pakistan Telecommunication Authority (PTA), through its Chairman, PTA Headquarters, F-5/1, Islamabad.

Principal Secretary to the Prime Minister of Pakistan, PM Secretariat, Constitution Avenue, Islamabad.

Mr. Farooq Ahmed Awan, presently serving as Chairman PTA, PTA Headquarters, F-5/1, Islamabad.

…Respondents

CONSTITUTIONAL PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF  PAKISTAN, 1973

Respectfully Sheweth,

That the following questions of public importance with reference to the enforcement of the fundamental rights conferred by Chapter 1 Part II of the Constitution of Pakistan, 1973, are involved for consideration;

LAW POINTS

Whether the appointment of the Chairman of the Pakistan Telecommunication Authority (referred herein as ‘PTA’) is in violation of The Pakistan Telecommunication (Re-organization) Act 1996, (referred herein as ‘The Act’) and merit based prescribed statutory criteria (which were previously followed and notified by the Federal Government)?

Whether the appointment of Chairman PTA is not based upon nepotism, favoritism, and personal whims and wishes, suppresses law and merit based criteria, holding field for such appointments?

Whether the rights of citizens of Pakistan are not adversely affected if Chairman of the PTA is appointed in gross violation of law and is not eligible to hold this office of high Public Importance?

Whether any appointment based upon political consideration, lack of competence to hold this office, and merit based criteriawould not result in depriving citizens of their fundamental rights guaranteed by Articles 9, 14, 18, 23 and 24 of the Constitution?

Whether the appointment of the incumbent Chairman PTA is not in violation of Section 3 (2) of The Pakistan Telecommunication (Re-organization) Act 1996 which stipulates that the Authority shall consist of three members, one of whom shall be a professional telecommunication engineer and other shall be a financial expert and the Federal Government from amongst the members shall appoint a member to be the Chairman of the Authority?

Whether it is not the spirit of law that one of the members of the PTA from amongst the member (Technical) and member (Finance) shall be elevated to the post of Chairman PTA and the post of member so vacated shall be filled through prescribed procedure including open competition by way of advertisement and consequently the composition of the Authority would be completed?

Whether the appointment of present Chairman PTA is not a colorful exercise carried out by the competent Authority whereby the Respondent No. 5 at the relevant time posted as Acting Secretary, IT & Telecom Division, was transferred and posted as Member PTA on 28th of July, 2012 by Respondents No. 1,2 and 4, and was notified as  Chairman PTA on the 31st of July, 2012 within a short span of only 3 days without advertising the post of Member PTA, without open competition and in gross violation of Federal Government’s notified criteria, in the wake that the appointments for the posts of Members PTA in the past had been carried out through advertisements in the press leading to short listing of candidates, interviews by the Selection Board and Prime Minister’s approval based upon the board recommendations?

Whether the appointment of Chairman should not have been made by the Respondents No. 1,2 and 4 from amongst the Members Technical & Finance after the completion of tenure of the Chairman which expired on 23rd of July, 2012?

Whether the summary prepared by the then Respondent No. 1 to the Competent Authority dated 20-07-2012 was not in consonance with the spirit of Section 3 (2) of The Pakistan Telecommunication (Re-organization) Act of 1996 which recommended that the Member (Technical) may be allowed to Act as Chairman PTA?

Whether the summary dated 26-07-2012 initiated by the Respondent No. 1 to Respondent No. 4 through Respondent No. 2 waslegal since it explained the relevant provisions of Act and recommended that Respondent No. 5, an officer of DMG (BS-21) posted as Acting Secretary IT & Telecom Division could be considered only against the post of Member Commercial Affairs, (not against the post of Chairman) and as when the post of Member (Commercial Affairs) would be created and approved?

Whether the appointment of Chairman PTA does not amount to usurp the rights of the experienced members of the Authority including Member (Technical) who has more and vast experience, the only full time Member with 3 years and four months experience as Member PTA?

Whether the provisions of The Civil Servants Act 1973 can override the provisions of Pakistan Telecommunication (Re-organization) Act 1996, which is a special law regulating all activities pertaining to telecommunication activities and selection criteria made by the Federal Government pursuant to the provisions of the Telecommunication (re-organization) Act related to the mode of appointment?

Whether the appointment of the incumbent Chairman PTA, is not in violation of Office Memorandum No. 1/123/2002-E-6 dated 06-02-2003, issued by the Government of Pakistan, Cabinet Secretariat/Establishment Division which expressly lays down the constitution of selection committee for appointments of Chairman/Members of PTA, NEPRA and OGRA and whether the appointment of the incumbent Chairman PTA is not in violation of procedure for appointment of Chairman and Members of Regulatory Authorities which stipulates such appointments by ways of:

Advertisement in the Press

Interviews by the Selection committee

And:

Approval of the Prime Minister, based upon the recommendations of the Selection Committee and comments of the establishment division from a panel of three candidates for each vacancy in order of merit.

BRIEF FACTS

Brief facts giving rise to the instant Constitutional Petition are that:

The Petitioner is a citizen of Pakistan and in the instant Petition is assailing the appointment of the Chairman of Pakistan Telecom Authority (PTA) which is in violation of The Pakistan Telecommunication (Re-organization) Act, 1996 and the notified and previously followed merit based selection criteria. It is worth mentioning here that the validity of appointment process of Chairman PTA is a matter of public importance since it is directly linked with fundamental rights of Pakistani citizens and warranted exercise of jurisdiction by the Honorable Supreme Court under Article 184 (3) of the Constitution. In PTA huge Government and Public stakes running into billions of dollars are involved.

PTA was established under the Pakistan Telecommunication (Re-organization) Act, 1996 and is responsible to regulate telecom industry, issue licenses, setup tariffs, enforce licensing conditions to protect consumers’ rights and to ensure provision of quality services against tariffs.  Its effective functioning has a direct nexus with securing the fundamental rights of the people of the Pakistan. Out of the total population of 180 million people, 123million are mobile users, 6 millions local loop users and 2.2 millions are broadband/Internet users.  The Telecom industry has contributed approximately PKR 54000 million of taxes in year 2011-12.  PTA has collected 7.5 billion PKR of regulatory dues which were then deposited to the Federal consolidated fund.  Moreover, PKR 3.8 billion were also paid to the Federal Government on account of Access Promotion Contribution (APC) (tax on incoming calls) and R&D fund in 2011-12.  At an average, 1.5 billion minutes of international traffic are being received in Pakistan per month. The revenue for Government associated to this traffic is approx 1.6 billion PKR per month. Change of 1 cent (US) in APC has impact of 1.3 billion PKR per month on Government of Pakistan Revenue and approx 310 millions minutes on international incoming traffic. Effective control over gray traffic is therefore of paramount importance and have impact on the people’s life.  Expected 3G auction in near future is likely to generate approximately 2-3 billion US dollars.  Cellular Companies supposedly have a huge default of 24 billion rupees under litigation and the cases are being pursued in the courts. Any compromise or non-proactive pursuance due to political reasons and connivance with the defaulters will incur huge losses to the national exchequer.

The Respondent No.5 was first made Member in the Authority not only in violation of the Act but also in violation of the merit based prescribed and notified procedure which includes advertisement in the press and then immediately, after assumption of the charge of the Member, was made the Chairman. Whereas, the Cabinet division has always been following the method of appointing the Members in the PTA through advertisements in the press.  (Copy of the past advertisements in the press for the post of Member Technical and Member Finance are herewith annexed). It is also worth mentioning here that in the past, even serving civil servants were appointed Members in the Authority through proper advertisement adhering thereby to merit based selection procedure.

Section 3(2) of the 1996 Act infers that the Authority shall consist of three members out of which one shall be a professional telecommunication engineer and another be a financial expert. Section 3(3) of the Act infers that the Federal Government shall, from amongst the members appointed, appoint a member to be the Chairman of the Authority. The spirit of the law is that from amongst the already appointed members; which are Member (Technical) and Member (Finance), one shall be elevated to the post of the Chairman PTA and the post of the Member then vacated shall be filled through prescribed procedure including advertisement and consequently the composition of the Authority i.e. of three members shall be completed.  In the past,the Government of Pakistan has always adopted this mechanism in Appointment of the Chairman of the Authority. This method of appointment of the Chairman is to be treated as the Government of Pakistan’s prescribed and practiced procedure. While appointing Respondent No. 5 this procedure along with the Federal Government’s notified criteria, was not adopted and entirely violated instead.

The post of Chairman PTA is in (Management Pay Scale) MP1, whereas the Members are in MP2. Therefore, it is impliedly obvious that the Member must have sufficient experience in the Authority in MP2 before elevation to the position of the Chairman.  The appointment of a person as a Member first and then elevating the same to the position of the Chairman within no time right after the assumption of  charge as member is not only  mala fide but alsoagainst the spirit of the Section 3(3) of the Telecom Act. Furthermore, it is also an active effort to dodge the law. It is also against the merits and Principles of Natural Justice. This exercise also usurps the right of the experienced Members of the Authority who deserve to be elevated first to the position of Chairman.  The Respondent No. 5 was first made Member (MP2) by-passing all prescribed selection procedures including advertisement and then was made the Chairman (MP1) within no time upon just assumption of the charge of the Member. In this regard, a letter bearing No. 2448/PSPM/2012 dated 28-07-2012, (annexed herewith), conveying PM’s approval to the Secretary Establishment depicts the whole mala fide exercise of the Government of Pakistan. This letter not only reveals the degree to which the law was twisted colorfully and craftily but also clearly depicts the whole exercise made by the political executive to grand an extraordinary favour to Respondent No.5. It is evident from the text of said letter that Respondent No. 5 was appointed member of the PTA only to dodge the process of law and the ultimate motive was to appoint him as the Chairman PTA.

In response to Establishment Division’s politically motivated ‘desire’ for Appointment of Respondent No.5 as Member PTA,  a reply by the Cabinet division to the Establishment division on 26.07.2012 (Cabinet Division’s U.O No. 5/7/2012-RA-I/PTA, dated 26th July, 2012,annexed herewith)and Establishment division’s letter ( Establishment Division’s U.O No. F.1/79/20/12-E-6, dated 27th July, 2012, annexed herewith) reveled themanner in which the recommendations of the Cabinet division were set aside and over ruled, further clearly depicts that the Secretary Establishment and Principal Secretary to the PM had become a mere tool to implement the illegal desire under political influence. It is worth mentioning here that the Federal Government cannot “in its absolute and unfettered discretion” create a very special, exclusive, partial selection criteria, in contrary to the norm and notified procedures which were followed in all previous cases for appointing the member PTA.

When the post of the Chairman became vacant on 23.07.2012, PTA consisted of two members i.e. Member (Technical) and Member (Finance). (Copy of Summary dated 20th July Cabinet’s Division U.O. No. 1/17/2002 TL-I/RA-I/PTA, is annexed herewith, in reference to this paragraph). The charge of Member Finance was given to the then Deputy Auditor General since the person holding that post was under suspension and an inquiry was being conducted by the FPSC. Therefore, the Member (Technical), with 3 years and 4 months of experience as Member in PTA, was the only full time Member available, fulfilling all the prerequisites, therefore, he should have been elevated to the position of the Chairman.  Member (Technical) holdsPh.D degree in Telecommunication Engineering from Durham University, UK and possesses more than 25 years of relevant experience.  Consequently, the post of   Member (Technical) would have got vacant and subsequently to be filled later, after fulfilling the prescribed criteria including advertisement.The same summary also states that no vacant post of any member exists and if it is desired to increase the number of members then the proper process must be followed (including the advertisement).

This summary however, did not have any effect and after over ruling the recommendations of Cabinet Division, a letter (Establishment Division’s U.ONo. F.1/79/2012-E-6 dated 27-07-2012) was then addressed to Respondent No.4, who after joining hands with the office of Respondent No. 2 appointed Respondent No.5 as the member PTA and right after that Respondent No. 5 was notified as the Chairman PTA in gross violation of merit, Telecom Act and Article 154 of the Constitution. This act of the offices of Respondents No.  2 and 4 was entirely based upon nepotism, flout of merit and favoritism. The relevant paragraph of the then Respondent No. 4’s letter is quoted here:

“The Prime Minister has further been pleased to approve the appointment of Mr. Farooq Ahmed Awan as Chairman PTA following his assumption of the charge as Member in the PTA in his own pay and scale.”

The mala fide intentions of Respondents No. 2 and 4 on occasions, were, also reported in print and electronic media, based upon which, the Senate Standing Committee on Cabinet affairs took cognizance of the situation and warned the Establishment division, Cabinet division and Prime  Ministersecretariat that merit and proper procedure must be adopted in appointment of the Chairman PTA. However, the recommendations and warnings of the committee were ignored and the chairman PTA was appointed in violations of Act and Procedure. (Letter dated July 16th, 2012 and News Clippings are annexed herewith for reference).

It is also worth mentioning here that OFFICE MEMORENDUM No. 1/123/2002-E-6 which laid down the Procedure for appointment of Members and Chairmen of GOVERNMENT REGULATORY AUTHORITIES, CORPORATIONS, AUTONOMOUS BODIES, COMMISSIONS ETC and AN APPROVED SUMMARY BY THE PRIME MINISTER with regards to TERMS OF APPOINTMENT AND AGE LIMITS OF CHAIRMEN AND MEMBERS OF GOVERNMENT REGULATORY AUTHORITIES AND CORPORATIONS, AUTONOMOUS BODIES, COMMISSIONS, ETC No. 6/12/2007/RA-1 were also violated while appointing Respondent No. 5. (Annexed herewith)

That the appointment of Respondent No. 5 which is in sheer violation of Telecom Act, prescribed and notified procedure by the Federal Government and the Constitution of Pakistan, 1973 is being assailed in the instant Constitutional Petition inter alia on the following amongst other;

GROUNDS

The appointment of the Chairman of the Pakistan Telecommunication Authority is in violation of The Pakistan Telecommunication (Re-organization) Act 1996, and merit based prescribed criteria (which were previously followed and notified by the Federal Government).

The appointment of Chairman PTA is based upon nepotism, favoritism, and personal whims and wishes suppressing law and merit based criteria, holding field for such appointments.

The rights of citizens of Pakistan would be adversely affected if Chairman of the PTA is appointed in gross violation of law and is not eligible to hold this office.

Any appointment based upon political consideration, lack of competence to hold this office, and merit based criteria would result in depriving citizens of their fundamental rights guaranteed by Articles 9, 14, 18, 23 and 24 of the Constitution.

The appointment of the incumbent Chairman PTA is in violation of Section 3 (2) of The Pakistan Telecommunication (Re-organization) Act 1996 which stipulates that the Authority shall consist of three members, one of whom shall be a professional telecommunication engineer and other shall be a financial expert and the Federal Government shall from amongst the members, appoint a member to be the Chairman of the Authority.

This is the spirit of law that one of the members of the PTA from amongst the member (Technical) and member (Finance) shall be elevated to the post of Chairman PTA and the post of member so vacated shall be filled through prescribed procedure including open competition by way of advertisement and consequently the composition of the Authority would be completed.

The appointment of present Chairman PTA is a colorful exercise carried out by the competent Authority whereby the Respondent No. 5 at the relevant time posted as Acting Secretary, IT & Telecom Division, was transferred and posted as Member PTA on 28th of July, 2012 by Respondents No. 2 and 4, and was notified as  Chairman PTA on the 31st of July, 2012 within a short span of only 3 days without advertising the post of Member PTA, without open competition and in gross violation of Federal Government’s notified criteria in the wake that the appointments for the posts of Members PTA in the past had been carried out through advertisements in the press leading to short listing of candidates, interviews by the Selection Board and Prime Minister’sapproval based upon the board recommendations.

The appointment of Chairman should have been made by the Respondents No. 1, 2 and 4 from amongst the Members Technical & Finance after the completion of tenure of the Chairman, whose tenure expired on 23rd of July, 2012.

The summary prepared by the then Respondent No. 1 for the Competent Authority dated 20-07-2012 was in consonance with the spirit of Section 3 (2) of The Pakistan Telecommunication (Re-organization) Act of 1996 which recommended that the Member (Technical) may be allowed to Act as Chairman PTA.

The summary dated 26-07-2012 initiated by the Respondent No. 1 to Respondent No. 4 through Respondent No. 2 fell within the ambit of law since it explained the relevant provisions of Act and recommended that Respondent No. 5, an officer of DMG (BS-21) posted as Acting Secretary IT & Telecom Division could be considered only against the post of Member Commercial Affairs (but not against the post of Chairman) and as when the post of Member (Commercial Affairs) would be created and approved.

The appointment of Chairman PTA amounts to usurp the rights of the experienced members of the Authority including Member (Technical) who has more and vast experience, the only full time Member with 3 years and four months experience as Member PTA.

The provisions of The Civil Servants Act 1973 cannot override the provisions of Pakistan Telecommunication (Re-organization) Act 1996, which is a special law regulating all activities pertaining to telecommunication activities and selection criteria made by the Federal Government pursuant to the provisions of the Telecommunication (re-organization) Act related to the mode of appointment.

The appointment of the incumbent Chairman PTA, is in violation of Office Memorandum No. 1/123/2002-E-6 dated 06-02-2003, issued by the Government of Pakistan, Cabinet Secretariat/Establishment Division which expressly lays down the constitution of selection committee for appointments of Chairman/Members of PTA, NEPRA and OGRA and the appointment of the incumbent Chairman PTA is in violation of procedure for appointment of Chairman and members of regulatory authorities which stipulates such appointments by ways of:

Advertisement in the Press

Interviews by the Selection committee

And:

Approval of the Prime Minister, based upon the recommendations of the Selection Committee and comments of the establishment division from a panel of three candidates for each vacancy in order of merit.

PRAYER:

In these circumstances it is therefore respectfully prayed that the instant constitutional Petition may be allowed. The Appointment of the present Chairman PTA (Respondent No. 5) may be declared illegal, void, unconstitutional, violative of the recognized process of recruitment and in gross violation of the Pakistan Telecommunication Re-organization Act 1996 and the same be struck down, in the interests of justice.

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