CCP Final

Form No: HCJD/C-121.

JUDGEMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT ICA No. 36 of 2020 Federation of Pakistan

Vs

Ms. Vadiyya S. Khalil and 2 others

DATE OF HEARING:

14-04-2020.

APPELLANT BY:

Mr Tariq Mehmood Khokhar, Addl.

Attorney General.

Kh. Muhammad Imtiaz, DAG. Mr M. Nadeem Khan Khakwani, AAG.

RESPONDENTS BY:

M/s Syed Ali Zafar, Jahanzeb Sukhera, Khurram M. Hashmi and Mehek Zafar Advocates.

ATHAR MINALLAH, CJ.- This Intra Court Appeal has been preferred by the Federation of Pakistan, assailing judgment, dated 03.02.2020, passed by the learned Single Judge whereby W.P. No. 4149/2018 was allowed and, consequently, notifications, dated 15.10.2018, whereby three years tenure of the respondents/petitioners had been curtailed, were declared to have been issued without lawful consequence and thus accordingly set aside.

ICA No. 36 of 2020.

2.

2

The facts, in brief, are that Ms Vadiyya S. Khalil, Dr

Muhammad Saleem and Dr Shahzad Ansar [hereinafter referred to as “Respondent no. 1, Respondent no. 2 and Respondent

No.

3

respectively

and

collectively

as

Respondents”] had invoked the constitutional jurisdiction of this Court assailing respective notifications, dated 15.10.2018.

The said notifications were issued pursuant to a decision taken by the Federal Cabinet in its meeting held on 04.10.2018.

Respondent no. 1 was initially appointed as Member of the Competition Commission of Pakistan [hereinafter referred to as the “CCP”) for a period of three years vide notification dated 17.12.2014. She was later appointed as Chairperson of the CCP vide notification dated 23.12.2014. The term of Respondent no.

1 was expiring on 02.12.2017 and, therefore, she was recommended to be reappointed as a Member and Chairperson for another term of three years. The latter was reappointed vide notification dated 14.12.2017 and she assumed her charge on 17.12.2017. Respondent no. 2 and Respondent no.

3 applied against the posts of Members of the CCP in response to

advertisements

published

in

various

newspapers

on

26.02.2017. On completion of the selection process they were appointed as Members of the CCP vide notification dated 04.12.2017 and assumed their charge on 05.12.2017. The reappointment of Respondent no. 1 and fresh appointments of Respondent no. 2 and Respondent no. 3 were not placed before the Federal Cabinet for consideration and approval. Their

ICA No. 36 of 2020.

3

respective recommendations were made by the Minister for Finance and later approval was granted by the then Prime Minister of Pakistan without the intervention of the Federal Cabinet. It is noted that the august Supreme Court, through judgment, dated 18.08.2016, titled “Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others” [PLD 2016 S.C. 808] has

enunciated

the

principles

and

law

regarding

the

interpretation of the expression “Federal Government” and whether it could delegate its powers provided under the relevant statutes. Pursuant to the said judgment, the Ministry of Finance placed a summary before the Federal Cabinet soliciting delegation of powers regarding making appointments against various posts. The summary was approved by the Federal Cabinet in its meeting held on 02.11.2016. The summary

was

resubmitted

on

06.02.2017

whereby

authorization was solicited under the respective laws for making

appointments

in

various

statutory

entities/organizations. The said summary was approved by the Federal Cabinet in its meeting held on 07.02.2017. It is noted that the said approval was in the nature of granting general delegation of powers vested in the Federal Government without reference

to

a

particular

appointment.

The

power

to

recommend an appointment was delegated to the Finance Minister and its approval to the Prime Minister of Pakistan. The reappointment of Respondent no. 1 and fresh appointments of

ICA No. 36 of 2020.

Respondent

no.

2

4

and

Respondent

no.

3

were

made

purportedly in exercise of the delegated powers in the light of the decisions of the Federal Cabinet taken in its meetings held on 02.11.2016 and 07.02.2017, respectively. The Federal Cabinet, in its meeting held on 04.10.2018, decided to terminate the reappointment of Respondent no. 1 as Member and Chairperson and the fresh appointments of Respondent no.

2 and Respondent no. 3, respectively, as Members. All the three Respondents filed a joint constitutional petition i.e. W.P. No. 4149/2018 and sought the following prayers:

“In view of the above, it is most respectfully prayed following reliefs may please be granted:(a).

Set aside the Impugned Notifications dated 15th October 2018 being void-ab-initio and illegal and the Respondent No.2 and issue a direction to the Respondents to give full force to the appointment and re-appointment of the Petitioners made vide Notifications dated 4th December 2017 and 17th December 2017, respectively; AND

(b).

Declare that the appointments and the reappointment

of

the

Petitioners

is

made

in

accordance with law and as per the prescribed procedure under the Competition Act, 2010; AND (c).

In the interim the operation of the Impugned Notifications

dated

15th

October

2018

may

graciously be suspended and the Petitioners be allowed to perform their statutory functions under the Competition Act, 2010;

ICA No. 36 of 2020.

5

Any other relief which this Hon’ble Court may deem fit in the circumstances of the case may also be granted to the Petitioners.”

3.

The learned Single Judge allowed the petition vide

judgment, dated 03.02.2020, and consequently set aside the impugned notifications, dated 15.10.2018. The learned Single Judge held that since the tenure of the Respondents was fixed under the law, therefore, the termination was void. Moreover, it

was

further

held

that

since

the

power

of

making

appointments in various statutory entities/organizations vested in the Federal Government had been delegated vide the decisions taken by the Federal Cabinet in its meetings held on 02.11.2016 and 07.02.2017 and that such delegated powers had not been recalled, therefore, there was no violation of the law enunciated by the august Supreme Court in “Messrs Mustafa Impex” case supra.

4.

The learned Additional Attorney General has argued

that; the learned Single Judge has not correctly appreciated the law laid down

by the august Supreme Court; the law

expounded by the august Supreme Court in the “Messrs Mustafa Impex” case supra explicitly declared that the power vested in the Federal Government could not be delegated; the decisions taken by the Federal Government were void and nonest; the appointments of the Respondents were neither considered

nor

approved

by

the

Federal

Cabinet;

the

appointments of the Respondents were void and, therefore, the

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6

Federal Cabinet had rightly decided to terminate their respective appointments.

5.

Mr Ali Zafar ASC has appeared on behalf of the

Respondents and has contended that; the Federal Government has misinterpreted the provisions of the Competition Act 2010 [hereinafter referred to as the “Act of 2010”]; it is implicit in the proviso to section 14 of the Act of 2010 that the power is vested in the Federal Government to delegate its functions and powers relating to appointing a Member or the Chairman, as the case may be; the expression “mode for appointment” includes the “power to appoint”; the Respondents were appointed pursuant to a transparent selection process; the Federal Government has also misinterpreted the law laid down by the august Supreme Court in the “Messrs Mustafa Impex” case supra. The law enunciated by the august Supreme Court in the said case is not attracted in relation to appointments sought to be made under the Act of 2010; the petitioners had challenged their termination and, therefore, the legality of the appointments made pursuant to the delegated powers of the Federal Government could not be probed while exercising jurisdiction under Article 199 of the Constitution; it was a constitutional obligation guaranteed under Article 10A of the Constitution to have observed the principles of procedural fairness before passing an adverse order e.g termination or curtailment of tenure of the Respondents.

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7

Mr Khurram M. Hashmi, Advocate, has appeared on

behalf of the CCP and has adopted the arguments advanced by the learned counsel for the Respondents.

7.

The learned Additional Attorney General and the

learned counsels for the parties have been heard and with their able assistance the record has been carefully perused.

8.

The admitted facts are that Respondent no. 1 was

appointed as Member and later Chairperson of the CCP in 2014 for a fixed term of three years. On expiry of her fixed term she was reappointed for another term of three years vide notification,

dated

17.12.2017.

Respondent

no.

2

and

Respondent no. 3 were appointed as Members of the CCP vide notification, dated 14.12.2017. After enunciation of the law by the august Supreme Court in the “Messrs Mustafa Impex� case, supra, the Finance Division had solicited the delegation of powers vested in the Federal Government under various statutes in the context of making appointments against statutory posts. Perusal of the summary shows that the proposal regarding delegation of powers was general in nature and not specific to any particular statute or post. The proposal was accepted by the Federal Cabinet in its meetings held on 02.11.2016 and 07.02.2017, respectively. The reappointment of Respondent no. 1 and the initial appointments of Respondent no. 2 and Respondent no. 3 had not been placed before the

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Federal Cabinet for consideration, rather, pursuant to the delegated powers, the Prime Minister of Pakistan had approved the recommendations made by the then Finance Minister. The Federal Cabinet was obviously bypassed. The prayers sought in the constitutional petition by the Respondents have been reproduced above and they had, inter-alia, explicitly sought a declaration regarding the validity of their appointments and reappointment which had purportedly been made by the Federal Government under the Act of 2010. The learned Single Judge in Chamber has eloquently dealt with the issues raised by the parties during the proceedings and in relation to the prayers sought in the petition. We have not been able to find any infirmity with the judgment of the learned Single Judge insofar as the question of termination of a fixed term appointment is concerned. However, the law laid down by the august Supreme Court in the “Messrs Mustafa Impex� case, supra, does not appear to have been properly pleaded before the learned Single Judge. The learned Single Judge has referred to the precedent law in paragraph twenty of the impugned judgment in support of the proposition that the reappointment or appointments, as the case may be, of the Respondents could not have been recalled merely on the ground of irregularity in delegating the powers which otherwise vest in the Federal Government and could only have been exercised by the Federal Cabinet i.e the Federal Ministers and the Prime Minister.

ICA No. 36 of 2020.

9.

9

We are afraid that the learned Single Judge was not

properly assisted in this regard. The crucial question regarding the validity of the reappointment of Respondent No. 1 and appointments of the other respondent Members was raised in their petition and a specific prayer was sought in this regard.

It is, therefore, essential to examine whether the Federal Cabinet was empowered to delegate its powers in the light of the law laid down by the august Supreme Court in the “Messrs Mustafa Impex� case, supra, and if the answer was in the negative then what would be the legal status of the appointments

made

pursuant

thereto by the

purported

delegatees? Was it an irregular exercise of jurisdiction or a case of want of jurisdiction, thus having the effect of rendering the decisions and appointments as void ab initio and non est. If the act of delegation of powers vide decisions taken by the Federal Cabinet in its meetings held on 02.11.2016 and 07.02.2017, respectively, were void then whether the principles of due process ought to have been observed before passing the adverse orders against the Respondents? The questions which precisely have to be examined are; whether the said decisions were a result of excess of jurisdiction, irregular exercise of jurisdiction or they were void ab initio and non est for want of jurisdiction. This aspect was essential to have been considered because, if it was a case of want of jurisdiction, then the decisions and actions taken pursuant thereto were viod abinitio and non-est and in such an eventuality the case law relied

ICA No. 36 of 2020.

10

upon in the impugned judgment would then have been distinguishable.

10.

In the “Messrs Mustafa Impex” case, supra, the

august

Supreme

Court,

after

examining

the

historical

perspective and the constitutional provisions in great depth, has interpreted and described the meaning of the expression “Federal

Government”. The

august

Supreme

Court

has

elaborately dealt with the status of the Prime Minister of Pakistan in the context of the expression "Federal Government" and the extent of powers which the said office could lawfully exercise in its name. The apex Court has also eloquently discussed whether the power vested in the Federal Government could be delegated. The five phases of legislative elucidation of the concept of “Federal Government” have been eloquently described. It has been held that the 18th Amendment had led to two critical changes (a) the power of delegation to officers and authority was taken away and (b) while originally the Federal Government had the power to delegate any of its functions to officers or authorities the same was no longer in existence. It was observed, therefore, that the amendments had brought about a radical reconstruction of the constitutional law. While interpreting Article 90 of the Constitution it was held that the executive authority of the Federation was exercised in the name of the President but the Federal Government meant the Prime Minister and the Federal Ministers. The Federal Government, therefore, consisted of the Federal Ministers and

ICA No. 36 of 2020.

11

the Prime Minster i.e the Federal Cabinet and not individual Ministers or the Prime Minister alone. Regarding the delegation of powers by the Federal Government, the august Supreme Court has observed and held as follows:

�At this stage we may also clarify another confusion. This is in relation to the concept of delegation of power. It was contended before us that in the Constitution of 1973, as originally enacted,

the

Federal

Government

was

empowered to delegate its functions to officers and authorities. It was further contended that in 1985 the provisions of Article 99 were amended and the power of delegation was taken away.

The

contention

was

that

the

concept

of

delegation contained in the original constitution does not exist anymore and hence that officers exercise executive authority on behalf of the Federal Government as opposed to acting in delegation of such powers. The implied inference that the taking away of the power of delegation by itself amounts to the conferment of power to act directly through someone is certainly not justified. There has to be an independent conferment of power. It needs to be clarified that there is a significant conceptual distinction

ICA No. 36 of 2020.

12

between the exercise of power through a designated person and the delegation of powers to him. If reference is made to the provisions of the 1973 Constitution, as enacted originally, it will be seen that Article 90(1) explicitly stated two things. Firstly, it was stated that the executive authority of the Federation was to be exercised in the name of the President. This is merely a question of nomenclature and nothing substantial turns on it. The mere fact that the executive authority was to be exercised in the name of the President does not amount to an explicit conferment of powers either on the President or anyone else. It is the further statement in Article 90 to the effect that the executive authority shall be exercised by the Federal Government consisting of the Prime Minister and the Federal Ministers which creates conferment of constitutional power. This power is conferred on the Prime Minister and the Federal Ministers who are authorized to act through the Prime Minister who is to be the chief executive of the Federation. This is a direct conferment plane.�

of power

on the

constitutional

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11.

13

After examining the constitutional provisions and the

historical background in great detail the august Supreme Court, inter-alia, concluded by declaring and holding as follows:

“(ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers.”

“(iii) Neither a Secretary, nor a Minister and nor

the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law.

Similarly

budgetary

expenditure,

or

discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet, and not the Prime Minister on his own. ”

“(vi) Rule 16(2) which apparently enables the Prime Minister to bypass the Cabinet is ultra vires and is so declared. “

12.

It is obvious from the above enunciation of law that

the powers vested in the Federal Government can only be

ICA No. 36 of 2020.

14

exercised by the Federal Cabinet, consisting of the Prime Minister and the Federal Ministers. The Federal Government i.e the Prime Minister and Federal Ministers collectively, cannot delegate the power vested under a statute to an officer, Minister or even the Prime Minister because no such power exists for doing so. Such purported delegation, and decisions taken pursuant thereto, would be constitutionally invalid and a nullity in law. The Federal Cabinet cannot be by passed in the case of powers vested in and exercisable by the Federal Government. The purported delegation, vide decisions taken by the Federal Cabinet in its meetings held on 02.11.2016 and 07.02.2017, were thus without lawful authority and jurisdiction and hence constitutionally invalid. It appears that after realizing the proper appreciation of the law laid down by the august Supreme Court, except for a few decisions, the said purported decisions were not acted upon.

13.

The next question which needs our consideration is

whether the Federal Government, while terminating the appointments of the Respondents, was required to observe the principles of “procedural fairness” and thus afford each one of them an opportunity of hearing. A learned Division Bench of this Court in the judgment reported as “Irfan Ahmed v.

Federation of Pakistan” [2016 PLC (CS) 491] after examining the precedent law has highlighted the principles relating to the observance of “procedural fairness”. The said judgment was

ICA No. 36 of 2020.

15

later affirmed by the august Supreme Court. The relevant portions from this Court’s judgment are reproduced as follows:

“Next is the question as to whether the principles of procedural fairness, or in other words the doctrine of audi alteram partem had been violated in the instant case. There is no cavil that the principles of natural justice

are

embedded

in

the

fundamental

right

guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan 1973 as an integral part of due process. However, we need to examine whether the mandatory requirements of due process or natural justice had been fulfilled in the instant case. In this regard, it would be pertinent to refer to two judgments of the august Supreme Court. In the case of “The University of Dacca through its Vice Chancellor and another Vs. Zakir Ahmed” reported as PLD 1965 Supreme Court 90. The august Supreme Court after examining the case law observed and held as follows:“What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando Tuker, L. J., said in Russel v. Duke of Norfolk (1) “the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.” Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the “elementary and essential principles of fairness” as a matter of necessary implication, the person sought to be affected must at least be made

ICA No. 36 of 2020.

aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and “to correct or controvert any relevant statement brought forward to his prejudice.” Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be effected to correct or contradict any relevant statement prejudicial to him. In other words, “in order to act justly and to reach just ends by just means” the Courts insist that the person or authority should have adopted the above “elementary and essential principles” unless the same had been expressly excluded by the enactment empowering him to so act.”

A Bench consisting of thirteen Hon’ble Judges of the august Supreme Court in the case of “Justice Khurshid Anwar Bhinder Vs. Federation of Pakistan” reported as PLD 2010 SC 483 examined various precedent law relating to the doctrine of audi alteram partem. In paragraph 41 of the judgment the august Supreme Court has referred to circumstances wherein, prima-facie, the right of the opportunity to be heard may be excluded by implication. In paragraph 42, it has been held as follows:“It must not be lost sight of that in the above mentioned “exclusionary cases, the ‘audi alteram partem’ rule is held inapplicable not by way of an

16

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17

exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case.” (Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248. Vide also Mohinder

Singh Gill v The

Chief

Election

Commissioner AIR 1978 SC 851, (1978) 1 SCC 405.

The doctrine of ‘audi alteram partem’ is further subject to maxim nemo inauditus condemnari debet contumax.’ Therefore, where a person does not appear

at

appropriate

stage

before

the

forum

concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that “application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority

would

rescind/withdrawn/cancel

be such

competent order

to without

affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him.

Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles

ICA No. 36 of 2020.

of

natural

18

justice.”(Nazir

Ahmed

Panhwar

v.

Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S) 161, Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It has been elucidated in the detailed reasoning of the judgment of 31-7-2009 how the order passed by a seven Member Bench of this Court has been flagrantly violated. Besides that the applicants had no vested right to be heard and furthermore they have acted illegally and in violation of the order of seven Member Bench for obtaining illegal gains and benefits which cannot be ignored while

examining

the

principle

of

‘audi

alteram

partem’.”

The august Supreme Court quoted with approval from various commentaries,

including the

Constitutional Development in Britain, authored by Lord Denning and the relevant portion is reproduced as follows:“The concept of natural justice is a combination of certain rules i.e. ‘audi alteram partem’ (nobody should be condemned unheard) and discussed in depth in preceding paragraphs and ‘nemo judex in re sua’ (nobody should be a Judge in his own case or cause) application whereof is to be decided by the Court itself in accordance with the fact, circumstances, nature of the case vis-à-vis the law applicable on the subject. It squarely falls within the jurisdictional domain of the Court concerned whether it would be necessary to

ICA No. 36 of 2020.

embark upon the concept of natural justice and whether it would be inevitable for the just decision of the case. The Court is not bound to follow such rules where there is no apprehension of injustice. It can be said with certainty that the concept of natural justice is flexible and it cannot be rigid because it is the circumstances of each case which determine the question of the applicability of the rules of natural justice.” There are a number of cases in India in which the flexibility of the rules of natural justice has been upheld. In New Parkash Transport Co. Ltd v. New Sawarna Transport Co. Ltd., the Supreme Court observed that rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provision of the relevant Act. While natural justice is universally respected, the standard vary with situations contacting into a brief, even postdecisional opportunity, or expanding into trial-type trappings. As it may always be tailored to the situation, minimal natural justice, the bares notice, ‘littlest’ opportunity, in the shortest time, may serve.

In exceptional cases, the application of the rules may even be excluded.”

It is, therefore, obvious that the principles of natural justice are flexible and not rigid. The determination of the application of these principles depends on the circumstances of each case, and various factors may be taken into consideration for this purpose, such as the nature of the inquiry, the subject matter being dealt with, whether anything

19

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20

unfair can be inferred if the opportunity is not afforded,

whether

there

is no apprehension of

injustice etc. However, depending on the facts and circumstances of each case, it would be sufficient if the 'elementary and essential principles of fairness' have been fulfilled. Therefore, in a given situation it may be sufficient if the person affected has been made aware of the nature of the allegations, has been afforded a fair and reasonable opportunity to defend the allegations and to controvert any statement made against him or her. It would not be mandatory in every case to examine witnesses in the presence of the person against whom allegations have been made, or to afford him or her an opportunity for cross examination. If a person who has been afforded a fair opportunity, which satisfies the requirements of the elementary and essential principles of fairness, does not appear or fails to avail the opportunity, or is otherwise defiant, then he or she may not be able to raise a grievance relating to violation of the principles of natural justice, as they would have no application in the given circumstances. In exceptional cases the application of the doctrine of 'audi alteram partem' may even be excluded.�

14.

The Respondents had invoked the constitutional

jurisdiction of this Court and had explicitly raised the question of

the

validity

of

their

respective

reappointment

or

appointments and a specific prayer was also sought in this regard. This question was argued and, pursuant thereto, adjudicated upon by the learned Single Judge, as is obvious from a plain reading of the impugned judgment. We have also

ICA No. 36 of 2020.

extended

effective

21

and

sufficient

opportunity

to

the

Respondents, through their able counsels, in order to fulfill the elementary and essential principles of fairness. In the circumstances, by no stretch of the imagination can it be suggested that the purpose to act fairly and to reach just ends by just means has been defeated or that the Respondents have been prejudiced in any manner. Moreover, in the facts and circumstances of the matter in hand it would be a futile and unnecessary exercise to refer the matter to the Federal Cabinet to give a hearing to the Respondents in respect of the validity of their appointments.

15.

Lastly, is the question raised by the learned counsel

for the Respondents, whether the proviso to section 14 of the Act of 2010 empowers the Federal Government to delegate its powers to appoint Members and Chairpersons under sub section (2) of section 14. Sub section (2) of section 14 explicitly and unambiguously empowers the Federal Government to appoint Members and, from amongst the Members of the Commission, to appoint the Chairman. The proviso, inter-alia, vests the power in the Federal Government to prescribe the “mode for appointment” of such Members. Despite his able assistance, the learned counsel for the Respondents was not able to persuade us that the “power to appoint” and “power to prescribe mode for appointments” were not distinct. It has

ICA No. 36 of 2020.

22

been argued that power to prescribe the mode includes the power to appoint.

16.

The expression “mode for appointment” has not been

defined in the Act of 2010. However, the meaning of the expression 'mode', described in various dictionaries, is as follows:

CONCISE OXFORD ENGLISH DICTIONARY 12 TH EDITION: “Mode> n.1 a way in which something occurs or is done: his preferred mode of travel was a bike.

Computing a way of operating a system. Physics any of the kinds or patterns of vibration of an oscillating system. Logic the character of a modal proposition. Logic & Grammar another term for Mood. 2 a style in clothes, art, etc. 3 Statistics the value that occurs most frequently in a given data set. 4 Music a set of notes forming a scale, from which melodies and harmonies are constructed.

-ORIGIN ME (in the musical and grammatical senses): from L.modus ‘measure’; cf. MOOD.” OXFORD THESAURUS OF ENGLISH (3 RD EDITION): “Mode noun 1 an extremely informal mode of policing: manner, way, fashion, means, method, system, style, approach, technique, procedure, process, methodology, modus operandi, form, routine, practice.

2 with the camera in manual mode you can zoom in

fast:

function,

position,

operation,

role,

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capacity.

3 the mode for active wear took hold in the seventies: fashion, vogue, current/latest style, style, look, trend, latest thing, latest taste; craze, rage, fad, general tendency, convention, custom, practice; French dernier cri.”

THE CHAMBERS (2006):

10 TH

DICTIONARY,

EDITION

“mode /mod/ n a way or manner of acting, doing, happening or existing; kind; form; manifestation; state of being (philos); a method of operation as provided by the software (comput); that which exists only as a quality of substance (philos); a mood

(grammar);

character

as

necessary,

contingent, possible or impossible (logic); a mood (logic); actual percentage of mineral composition (petrology); (stats);

the

value

modality;

of greatest

fashion;

that

frequency which

is

fashionable; fashionableness; a model of fashion (obs);

alamode,

or a

garment

made

of it;

openwork between the solid parts of lace; the method of dividing the octave according to the position of its steps and half steps (music); in old music, the method of time-division of notes (perfect into three, imperfect into two, major, division of large into longs, minor of long into breves). [L modus; partly through Fr mode].”

ADVANCED LAW LEXICON (VOL-3) 3RD EDITION, (2009): “Mode. “Mode” means the customary manner; prevailing style; the manner in which a thing is done. A statistical average equal to the number that occurs most frequently in a group of numbers,

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measure of central tendency. (Investment; Trade Finance; Business Term) Way or manner of doing or being; a method or procedure; a form [S.298, Cr.P.C., 1973 (2 of 1974); S. 29(2)(a), Inland Vessels Act (1 of 1917)].”

BLACK’S LAW DICTIONARY, 9TH EDITION: “mode. (17c) A manner of doing something <mode of proceedings><mode of process>.”

17.

It is, therefore, obvious from the above dictionary

meaning of the expression "mode" that it means the procedure, mechanism or manner of doing something. In the context of the instant appeal and for the purposes of the Act of 2010 it means prescribing a mechanism, procedure or manner to enable the Federal Government to exercise the power vested in it to make the appointments as provided under section 14 (2) of the Act of 2010. The power to appointment and to prescribe a mode, procedure or mechanism for that purpose are absolutely distinct. The power to appoint, vested in the Federal Government, is exclusive and the legislature has not intended

its

unambiguous

delegation,

otherwise

language

manifesting

it

would the

have

same.

As

used an

illustration, “mode” would include prescribing the process e.g. manner of advertisement, processing of the applications, short listing of candidates, how and by whom interviews of eligible candidates would be conducted and the procedure for making

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25

recommendations to the competent authority i.e. the Federal Cabinet. It is, therefore, held that prescribing the mode for appointment can by no stretch of the imagination include the power to appoint or to delegate the power to appoint.

18.

For the above reasons we have no doubt in our minds

that the reappointment of Respondent no. 1 as Member and Chairperson and the initial appointments of Respondent no. 2 and Respondent no. 3 were not made by the Federal Government as explicitly provided under the Act of 2010 and, therefore, they were without jurisdiction, void and non-est.

19.

However, the acts done or orders passed during the

interim period i.e. from the time of the purported appointments till the rendering of this judgment, shall be protected under the de facto doctrine. Reference in this regard may be made to the cases of “Mahmood Khan Achakzai v. Federation of Pakistan“ [PLD 1997 SC 426], “Asad Ali v. Federation of Pakistan “ [PLD 1998 SC 161], “Mehram Ali v. Federation of Pakistan“ [PLD 1998 SC 1445], “Javed Iqbal v. Muhammad Arif “ [1999 SCMR 13], “Pakistan Medical and Dental Council v. Fahad Malik

“

[2018 SCMR 1956].

20.

This appeal is, therefore, allowed and, consequently,

the judgment, dated 03.02.2020, is hereby set aside. Keeping in view the importance of the CCP, the Federal Government is expected and directed to fill the vacant positions through a

ICA No. 36 of 2020.

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transparent process at the earliest, preferably within thirty days from the date of receiving a certified copy of this judgment.

(CHIEF JUSTICE) (AAMER FAROOQ) JUDGE Announced in open Court on 23-04-2020.

JUDGE

CHIEF JUSTICE

Approved for reporting.

Tanveer Ahmed.