Selection of Chairman and Member Finance of Pta challenged in LHC

ISLAMABAD ( BMZ REPORT )

Dr Ismail         tariq-sultanThree Director General of Pakistan Telecom Authority Challenge the process of selection sitting chairman and member finance of authority. Mr Muhammad Saleem Mr Waseem tauqir and Mr Sajjad Latif Awan filled petition in Lahore High Court through Barrister Ali Raza and other lawyers. Three director general of Pta take plea that the Impugned Advertisement of 15-06-2013  is illegal, unlawful and discriminatory and is liable to be set-aside on the following grounds.

 

(i)                 That at the very outset, the Impugned Advertisement does not mention under what provision of law it has been published. Under Section 24-A of the General Clauses Act 1897, where a statute confers a power to make any order or to give any direction to any authority, officer or person such a power would be exercised reasonably, fairly and justly and with reasons. In this regard, the Advertisement does not even mention that it has been published in accordance with the PTA Appointment Rules or the PTA Act and is liable to be set-aside on this ground alone.

 

(ii)               That the qualifications required for the post of Member (Compliance and Enforcement) are different from the qualifications laid down in the PTA Appointment Rules. For example, Schedule I, which is pursuant to Rule 4(1) of the PTA Appointment Rules, provides that a candidate must simply have a Masters Degree in the aforesaid disciplines with 18 years relevant experience in the Public/Private Sector. However, the Impugned Advertisement adds an additional requirement of 5 years experience at the higher management level. There is no provision in the PTA Appointment Rules that caters for this added requirement and the same has been inserted unlawfully, with mala-fide intent to perpetuate the interests of certain handpicked individuals of the Respondents. For this reason, the Impugned Advertisement must be set aside and fresh appointments be made which are in consonance with the PTA Act and the PTA Appointment Rules.

 

(iii)             That even otherwise the qualification and experience for all three members of the Respondent No: 4 is different from the qualifications and experience stipulated in the PTA Appointment Rules. For example the post of Member (Technical), the PTA Appointment Rules clearly provide that experience of working in the field of Telecommunications/Regulatory Organizations would be preferred but in the Advertisement itself, this requirement (which would benefit the Applicant directly) is conspicuously absent. Furthermore, added preference would be provided to participants who possess MBA Degrees, which has no nexus with the post of Member (Technical) and furthermore is not present in the PTA Appointment Rules.

 

(iv)             That there is a clear discrepancy between the age limits mentioned in the PTA Appointment Rules and that mentioned in the Impugned Advertisement. The Impugned Advertisement states that the maximum age is 56 years whilst Schedule I of the PTA Appointment Rules sets the maximum age at 57. Thus it is clear that the Impugned Advertisement is clearly beyond the scope of the PTA Appointment Rules and is liable to be set aside.

 

(v)               That the Applicant clearly and unambiguously satisfies the criteria laid down in the PTA Appointment Rules as well as the Impugned Advertisement, but has not been considered for selection due to vague, nebulous and wholly unsatisfactory reasons provided. In this regard, the Impugned Advertisement requires setting aside.

 

(vi)             That ad-hoc appointments made by the Respondents are in clear violation of the Orders of this Honb’le Court which has clearly provided that the new appointments of Members of the Respondent No: 5 must only be through fresh advertisements and faithful to the procedure prescribed in judgments of the Honb’le Supreme Court.

 

(vii)           That Article 4 of the Constitution of Republic of Pakistan 1973 guarantees that every citizen shall enjoy the protection of law and be treated in accordance with the law. In this regard, the Impugned Advertisement is in violation of Article 4 as the Applicant is being treated unlawfully by being automatically disqualified under the Rules because of an unreasonable and arbitrary age limit requirement.

 

(viii)         The Impugned Advertisement is violative of the fundamental rights of the Applicant enshrined under Article 25 of the Constitution of Pakistan 1973. The Applicant has been unlawfully discriminated without any particular reason and without any intelligible criteria even though he fully satisfies the requirements laid down in the Impugned Advertisement

 

(ix)             That the Impugned Advertisement is in violation of Article 9, Article 14 and Article 18 of the Constitution which lay down the right of life, dignity and freedom of trade, business and profession. The maximum age limit prescribed in the Impugned Advertisement is a blatant attempt to cull these rights viz a viz the Applicant and are liable to be set aside.

 

3.         That the subject matter of the instant Petition is inter-alia the challenging of the Impugned Advertisement as unconstitutional, arbitrary and unlawful. The Applicant should be impleaded a necessary and proper party in this subject Petition, as the Applicant has a vested interest as an aspirant for the post of Member (Technical) in Respondent No: 4 and his interests are most certainly to be affected with respect to the outcome of the subject Petition.

 

4.         The Applicant is a necessary and proper party to this Petition as his addition to the Petition is necessary for this Honourable Court to adjudicate upon all issues and settle all questions involved in the Petition.

 

5.         That the Applicants have no other adequate and efficacious remedy except to seek interference of this Honourable Court.

 

5.         That, furthermore, in view of the foregoing, it is apparent that in order to adjudicate the issues/matters and questions of law and fact raised in the titled Petition, it is in the interests of justice to implead the Applicant as a proper and necessary party to the instant suit.

 

6.         That the dictates of justice entail that this Honorable Court exercise its jurisdiction so as to give relief according to the circumstances of the present case, keeping in view the proceedings already pending adjudication before this Honorable Court.

 

7.         That if instant relief is not given, the same shall cause irreparable loss and damage to the Applicants.

 

In view of the foregoing, it is respectfully prayed that:

(a)        This Honourable Court may kindly pass an order impleading the Applicant as necessary and proper parties in the above titled suit;

(b)        This Honourable Court may kindly pass an order that the Advertisement dated 15-06-2013 is in violation of and contrary to the PTA Appointment Rules, the PTA Act and Articles 4,8,9,18 and 25 of the Constitution.

(c)        The Honourable Court may kindly pass an order that a fresh Advertisement should be issued which is in consonance with the PTA Act and the PTA Appointment Rules.

Here is one petition out of three filed by applicant……

 

 

 

                                               

 

 Writ Petition No: 5597/ 2013

 

Mr Amjad Farooq Alvi

Versus

Federation of Pakistan through Secretary Cabinet Division and 6 Others

________________________________________________________________________

APPLICATION UNDER ORDER 1, RULE 10 AND ALL OTHER ENABLING PROCISIONS OF THE CPC ON BEHALF OF MR. MUHAMMAD SALEEM S/O MR. MUHAMMAD SAEED, R/O HOUSE NO: 1018, STREET NO: 42, PHASE III, BAHRIA TOWN, ISLAMABAD HOLDING CNIC NO.:  61101-2009544-5 ________________________________________________________________________

Respectfully Sheweth:

 

1.         That the titled Writ Petition has been filed by the Petitioner, which is pending adjudication before this Hon’ble Court and no next date of hearing, has been fixed so far.

 

2.         That by way of background, it is most respectfully averred that:

           

            FACTUAL BACKGROUND

 

(i)                 The Applicant, for the last 5 years, has been employed as a Director General (Commercial and Economic Affairs) in the Respondent No: 4. The Applicant has a PHD in Economics and has assisted the Respondent No: 4 in various matters including mobile telecommunication tariff review, interconnection charges, cross subsidization and anti competitive matters. Additionally, the Applicant has had international experience of serving as an Economic Advisor in Oman Telecom Regulatory Authority and has a total of 29 years experience in the Federal Government and 14 years in telecommunication regulatory bodies including the Respondent No: 4.

[The Curriculum Vitae and list of experiences of the Applicant are appended herewith as Annexure A]

 

(ii)               That the Respondent No: 1 on 13-02-2013 promulgated the Pakistan Telecommunication Authority’s Chairman and Member (Appointment and Qualification) Rules 2012 (the “PTA Appointment Rules”). The Petitioner in the present Petition has challenged the vires of the rules, which is pending adjudication before this Hon’ble Court.

 

[A copy of the PTA Appointment Rules are appended herewith as Annexure B]

 

(iii)             That the Respondent No: 1 on 14-06-2013 advertised three posts of Member (Finance), Member (Technical) and Member (Compliance and Enforcement) through national newspapers to be appointed by the Respondent No: 1 (the “ Impugned Advertisement”).  The Applicant applied for the post of Member (Finance) on 19-06-2013 citing his rich experience, but to his shock and horror, discovered that an Upper Age Limit was added to the Impugned Impugned Advertisement, which was 56 years. Since the Applicant was born on 6/10/1956, he was automatically disbarred from applying to the aforesaid post on the basis of this unlawful and arbitrary limit. In this regard, the Applicant wrote a letter dated 11-09-2013 to the Respondent No: 1 highlighting that the Advertisement was not in consonance with the provisions of the Pakistan Telecommunication (Reorganization) Act 1996 (the “Act”) and that proposing age limits was akin to eliminating experience, relevancy and qualifications of professionals vying for such posts.

 

[Copy of the Advertisement is appended herewith as Annexure C and copy of the Applicant’s application for the post of Member Finance dated 19-06-2013 and Applicant’s Letter dated 11-09-2013 is appended herewith as Annexure D-1 and D-2 respectively.]

 

(iv)             That no valid response has been provided by the Respondents to the Applicant’s letter dated 11-09-2013 and no reasons have been cited for the Impugned Advertisement. As a consequence, the Applicant stands disqualified from applying to the post of Member (Finance) on blatantly unlawful and illegal grounds.

 

(v)               That the Applicant seeks to challenge Section 4 and Schedule 1 of the PTA Appointment Rules as well as the Impugned Advertisement on inter-alia the following:

 

GROUNDS

 

Rule 4 and Schedule 1 of the PTA Appointment Rules

 

1.         Rule 4 and Schedule 1 (which is pursuant to Rule 4) of the PTA Appointment Rules (the “Impugned Provisions”) are illegal, unconstitutional and ultra-vires the PTA Act on inter-alia the following grounds:

 

(i)                 In Schedule 1 of the Rules, the maximum age for appointment of the three Members of the Respondent No: 4 i.e. Member Finance, Member Technical and Member Compliance and Enforcement is fixed at 57 years. This is in stark contradiction of Rule 3(3) of the Rules which provides as follows:

 

“No person who is more than sixty five years of age shall be appointed as a Member (of the Respondent No: 4) and the person shall cease to be a Member or Chairman on attaining the age of sixty five years.”

 

It is quite apparent that there is an unambiguous contradiction between the maximum age in Rule 3(3) and Schedule 1 of the Rules. The same amounts to a colorable exercise of power and in this respect, Schedule 1 of the PTA Appointment Rules is liable to be set aside for being discriminatory, restrictive and not in consonance with Rule 3(3) of the Rules.   The superior courts of Pakistan have held, inter-alia that in case of irreconcilable inconsistency between the body of a statutory provision and a Schedule, the former is to prevail and the latter must yield of the statutory provision. For these reasons the Schedule should be set aside and must be brought into conformity with the Rules.

 

(ii)        That the setting of maximum age limits as prescribed under Schedule 1 of the Rules is clearly discriminatory towards all such individuals who clearly and unambiguously conform to the requirements and qualifications as set out in the Rules. The same is also in violation of Article 25 of the Constitution of Pakistan 1973, which states that everyone must be treated equally in the eyes of law. Furthermore, there is no intelligible differentia for creating such an obvious discrimination. Hence, the PTA Appointment Rules are liable to be set aside.

 

(iii)       The qualifications and experience for Members of the Respondent No: 4 prescribed in Schedule I are arbitrary, unreasonable and deliberately person specific. For example, in the qualifications for Member Finance, the Applicant is required to be a Chartered Accountant/FCA/CFA/CPA/CIMA or a financial expert (the latter expression has not been defined). In this respect, University Degrees or Masters in similar disciplines like Economics that is the Applicant’s expertise, have been deliberately omitted. In this regard, Schedule 1 of the PTA Appointment Rules is restrictive and arbitrary and is liable to be set aside.

 

(vi)             The PTA Appointment Rules have conspicuously deviated from the criteria which has previously been followed in appointments of members n the past. In this regard, the Impugned Advertisement for Member Finance dated 24-07-2002, stated that persons with alternative qualifications in economics, finance and public administration were eligible to apply rather than simply restricting qualifications and experience to Chartered Accountancy and citing vague and nebulous terms like “financial experts” which have not been defined in the PTA Appointment Rules. In this regard, Schedule 1 of the PTA Appointment Rules is liable to be set aside.

 

[Copy of Previous Advertisement dated 24-07-2002 is appended herewith as Annexure E]

 

(vii)           That the superior courts of Pakistan have held, inter-alia that a rule making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute under which the rules have been framed and that such rules shall be declared invalid if they are in “bad faith that is to say that powers entrusted for one purpose are deliberately used with the design of achieving another. In this regard, Schedule 1 of the PTA Appointment Rules, which assigns a maximum age limit of 57 years without any discernible reason, is specifically aimed at disqualifying persons older than 57 years such as the Applicant. Schedule 1 of the PTA Appointment Rules is liable to be set-aside on these grounds.

 

(viii)         That it is also pertinent to mention that the Government of Pakistan, through the Establishment Division has removed upper age limit with respect to the appointment of its members/ chief executive officers etc for various government ministries/regulatory authorities. Therefore, it defies logic and reason why the Respondent No: 4 has been singled out for having an arbitrary upper age limit with respect to the appointment of its members. The process is clearly discriminatory and in violation of Article 25 of the Constitution and therefore the PTA Appointment Rules deserve to be set aside and declared yltra vires the Constitution.

 

[Copy of Establishment Division circular is appended herewith as Annexure F]

 

(ix)             That Article 4 of the Constitution of Republic of Pakistan 1973 guarantees that every citizen shall enjoy the protection of law and be treated in accordance with the law. In this regard, Schedule 1 of the PTA Appointment Rules is in violation of Article 4 as the Applicant is being treated unlawfully by being automatically disqualified under the Rules because of an unreasonable age limit requirement.

 

(x)               That Schedule 1 of the PTA Appointment Rules are in violation of Article 9, Article 14 and Article 18 of the Constitution which lay down the right of life, dignity and freedom of trade, business and profession. Once the legislature has decided that the mobile telecommunication. The maximum age limit prescribed in Schedule 1 of the PTA Appointment Rules is a blatant attempt to cull these rights viz a viz the Applicant and are liable to be set aside.

 

Advertisement dated 14-06-2013

 

2.         The Impugned Advertisement is illegal, unlawful and discriminatory and is liable to be set-aside on the following grounds.

 

(i)                 That at the very outset, the Impugned Advertisement does not mention under what provision of law it has been published. Under Section 24-A of the General Clauses Act 1897, where a statute confers a power to make any order or to give any direction to any authority, officer or person such a power would be exercised reasonably, fairly and justly and with reasons. In this regard, the Impugned Advertisement does not even mention that it has been published in accordance with the PTA Appointment Rules or the PTA Act and is liable to be set-aside on this ground alone.

 

(ii)               That the qualification and experience for all three members of the Respondent No: 4 in the Impugned Advertisement is different from the qualifications and experience stipulated in the PTA Appointment Rules.  Therefore the Impugned Advertisement should be set aside for inconsistency.

 

(iii)             That there is a clear discrepancy between the age limit mentioned in the PTA Appointment Rules and that mentioned in the Impugned Advertisement. The Impugned Advertisement states that the maximum age is 56 years whilst Schedule I of the PTA Appointment Rules sets the maximum age at 57. Thus it is clear that the Advertisement is clearly beyond the scope of the PTA Appointment Rules and is liable to be set aside.

 

(iv)             That the Impugned Advertisement is not at all in consonance with previous Advertisements that have been published for the appointment of Members of the Respondent No: 4. In this regard, Advertisement for Member Finance dated 24-07-2002, stated that persons with alternative qualifications in economics, finance and public administration were eligible to apply rather than simply restricting qualifications and experience to Chartered Accountancy and citing vague and nebulous terms like “financial experts” which have not been defined clearly. Thus the Advertisement is unduly restrictive, and unclear and is liable to be set aside.

 

(v)               That Article 4 of the Constitution of Republic of Pakistan 1973 guarantees that every citizen shall enjoy the protection of law and be treated in accordance with the law. In this regard, the Advertisement is in violation of Article 4 as the Applicant is being treated unlawfully by being automatically disqualified under the Rules because of an unreasonable and arbitrary age limit requirement.

 

(vi)             That the Impugned Advertisement is in violation of Article 9, Article 14 and Article 18 of the Constitution which lay down the right of life, dignity and freedom of trade, business and profession. The maximum age limit prescribed in the Advertisement is a blatant attempt to cull these rights viz a viz the Applicant and are liable to be set aside.

 

3.         That the subject matter of the instant Petition is inter-alia the challenging of Schedule I the PTA Appointment Rules as unconstitutional, arbitrary and unlawful. The Applicant should be impleaded as a Petitioner in the titled Petition being a necessary and proper party, as the Applicant has a vested interest as an aspirant for the post of Member (Technical) in Respondent No: 4 and his interests are most certainly to be affected with respect to the outcome of the subject Petition.

 

4.         The Applicant is a necessary and proper party to this Petition as his addition to the Petition is necessary for this Honourable Court to adjudicate upon all issues and settle all questions involved in the Petition.

 

5.         That the Applicant has no other adequate and efficacious remedy except to seek interference of this Honourable Court.

 

6.         That, furthermore, in view of the foregoing, it is apparent that in order to adjudicate the issues/matters and questions of law and fact raised in the titled Petition, it is in the interests of justice to implead the Applicant as a proper and necessary party to the instant suit.

 

6.         That the dictates of justice entail that this Honorable Court exercise its jurisdiction so as to give relief according to the circumstances of the present case, keeping in view the proceedings already pending adjudication before this Honorable Court.

 

7.         That if instant relief is not given, the same shall cause irreparable loss and damage to the Applicant.

 

In view of the foregoing, it is respectfully prayed that:

(a)        This Honourable Court may kindly pass an order impleading the Applicant as a Petitioner in the above titled Writ Petition being a necessary and proper party;

                    

 (b)       This Honorable Court may kindly pass an order declaring that Schedule I of the PTA Appointment Rules, are arbitrary, contradictory and inconsistent with Rule 3 of the PTA Appointment Rules, the PTA Rules and Articles 4,8,9,18 and 25 of the Constitution of the Islamic Republic of Pakistan 1973.

 

(c)        This Honourable Court may kindly pass an order that the Advertisement dated 14-06-2013 is in violation of and contrary to the PTA Appointment Rules, the PTA Act and Articles 4,8,9,18 and 25 of the Constitution.

(c)        Any other relief that this Honorable Court may deem appropriate under the facts and circumstances of the case may also be allowed.

           

 

          APPLICANT

                                                            Through

 

 

____________________        __________________            ________________________

Sardar Mohammad Ali        Syed Reza Ali                                    Sardar Taimoor Ahmed Ali

Barrister-at-Law                      Barrister-at-Law                      Barrister-at-Law

Advocate High Court                         Advocate High Court             Advocate

 

 

Ali & Ali

 Barristers and Corporate Consultants

Unit No. 1, 1st Floor, Fountain Avenue Building,

64-A, Main Boulevard,

Lahore.

 

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