appointment of respondent number 6 as NADRA Chairman was illegal due to non-compliance with legal procedures and constitutional laws

لاہور ہائی کورٹ نے 6 ستمبر 2024 کو درخواست نمبر 12091/2024 پر فیصلہ سناتے ہوئے یہ قرار دیا کہ نادرا کے چیئرمین کے طور پر جواب دہندہ نمبر 6 کی تقرری قانونی اختیار کے بغیر کی گئی تھی۔ عدالت نے فیصلہ دیا کہ یہ تقرری ضروری قانونی طریقہ کار کی پیروی نہیں کرتی اور آئینی قوانین کے خلاف ہے۔ لہذا، عدالت نے جواب دہندہ نمبر 6 کی تقرری، توثیق اور عہدے پر جاری رہنے کو غیر قانونی قرار دیا۔ عدالت نے اس فیصلے کی کاپی وفاقی کابینہ، وزارت داخلہ اور متعلقہ محکموں کو بھیجنے کا حکم دیا اور کسی بھی فریق کے اخراجات کی ذمہ داری عائد نہیں کی۔

HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

LAHORE.

JUDICIAL DEPARTMENT

…………..

Writ Petition No. 12091/2024.

Ashba Kamran.

Versus

Federation of Pakistan through Secretary to the President, President‟s

Secretariat, Islamabad and others.

JUDGMENT

Date of hearing:

11.07.2024.

Petitioner by:

Petitioner in person.

Respondent(s) by: Mirza Nasar Ahmad, Additional

Attorney General for Pakistan.

Mr. Asad Ali Bajwa, Deputy

Attorney General for Pakistan.

Ch. Imtiaz Ellahi, Deputy Attorney

General for Pakistan.

M/s Mohsin Raza, Ch. Najam-ulHassan, and Ijaz Rehmat Basra,

Assistants Attorney General for

Pakistan.

M/s Imran Muhammad Naeem,

Zeeshan Ghani, Munib Cheema,

Hamid Rafique and Jamail Khan,

Advocates for respondent No.6 /

NADRA.

ASIM HAFEEZ, J. Petitioner, based on the information

provided, seeks exercise of jurisdiction under Article 199(1)(b)(ii) of

the Constitution of the Islamic Republic of Pakistan, 1973 (the

No. 12091/2024.

‘Constitution‟) to inquire and adjudicate the question that under what

„authority of law‟ respondent No.6 has been appointed, and is

currently holding the office of Chairman, National Database and

Registration

W.P. No. 12091/2024.

qua the affairs of the Authority, security breaches and compromised

security benchmark. Learned Additional Attorney General provided

some documents with dates, contemporaneous to the appointment of

respondent No.6 by the Caretaker Government. Privilege claimed

regarding documents is unjustified. Documents referred to an incidence

of data leakage and formation of Joint Investigation Team to probe into

the charges, which details appeared in the Dawn newspaper of March

27, 2024 – [one day before the issuance of Notification of confirmation

of respondent No.6] - which news item disclosed the factum of probe

into allegation of compromised data of 2.7 million citizens. Copy of

news item is attached as Annexure-C. No material is relied on or

provided to justify alleged national interest. Does it imply that any

lapse or irregularity in the records of any statutory corporation or

authority would justify resort to extralegal mechanism, for making

direct appointment without the need for adoption of competitive

recruitment process. Mere leakage of data, simplicitor, is no ground to

abandon qualification-based and meritorious appointment(s). This

close-door approach entails reduced competitiveness, exacerbates

social inequalities and curtails professional opportunities, which results

in intense brain-drain. Seeking refuge behind plea of national interest is

non justiciable, which in fact violates the principle of separation of

powers, where in fact the executive had exceeded or over-stepped

delegated authority and proceeded to introduce an incompatible rule

vis-à-vis primary enactment. Hence, claim of national interest fails,

being un-plausible.

W.P. No. 12091/2024.

Since, appointment made is already found in excess of delegated

authority, therefore, I find no reason to dilate upon the effect(s) of

person-centric rule-making in the context of the ratio of decision in the

case of “Baz Muhammad Kakar and others Vs. Federation of Pakistan

through Ministry of Law and Justice, Islamabad and others” (PLD 2012

Supreme Court 870). In wake of dispositive determination of main

question, I find no reason to discuss ratio of the decision in the case of

“Waris Meah Vs. (1). The State (2). The State Bank of Pakistan” (PLD 1957

SC (PAK) 157) to dilate upon the effect of an ex-facie discriminatory

legislation – for the purposes of ruled inserted through Rule-7A of the

Rules, 2020 – and discriminatory application thereof. Likewise, no

occasion arises, in the wake of holding the appointment in excess of the

authority delegated, to discuss the case of „Jibendra Kishore, etc. v. THE

PROVINCE OF EAST PAKISTAN‟. (PLD 1957 SC Pak 9), to highlight

violation of constitutional mandate of „equality before the law‟.

Argument that on two different occasions the officer(s) in service had

the privilege of serving as the Chairman of NADRA is without

substance. An illegality committed previously would not per se validate

the appointment under reference, not authorized by and in terms of the

statute. I refrain from commenting on the scope of section 34 of the

Ordinance, 2000 in particular with reference to the expression,

„engage‟, in the context when respondent No.6 claims service lien /

retention of original post, which would be an academic exercise, in

wake of affirmative findings recorded against the holding of the Office

by respondent No

W.P. No. 12091/2024.

It is alleged that remedy of „quo warranto‟ is of technical

nature and it is in the discretion of the Court to decline issuance thereof.

I am afraid that illegality committed by way of an unauthorized

appointment, by the appointing authority in absence of delegation,

cannot be covered – one cannot hide the elephant in mouse-hole.

Hence, discretion necessarily needs to be exercised, to end usurpation

of the office. In these circumstances, act of confirming the appointment

of respondent No.6 is unauthorized and otherwise inconsistent with the

enactment, therefore, without requisite „authority of law‟.

27.

Consequently, this petition is allowed, the appointment,

confirmation and continuing holding of the office of Chairman

NADRA by respondent No.6 is declared without the „authority of law‟.

Office shall send copy of this Order to the Federal Cabinet, Ministry of

Interior and all departments concerned. No order as to the costs.

(ASIM HAFEEZ)

JUDGE

Announced and signed in open Court on this 06th day of September-2024.

JUDGE

Approved for reporting.

JUDGE

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