Javed Akhtar Vs Government of KPK and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No. 3329-P/2024

JUDGMENT

Javed Akhtar

Government of Khyber Pakhtunkhwa &others.

Date of hearing 25.03.2025

Petitioner(s) By Mr. Shumail Ahmad Butt, Advocate.

Mr. Abdur Rahim Khan Jadoon, Advocate.

Mr. Najm Ul Saleheen, Advocate.

Respondent (s) By Mr. Ajmal Khan, Advocate.

Mr. M. Riaz Khan, AAG.

QAZI JAW AD EHSANULLAH, J.- Petitioner Javed Akhtar has approached this court and is seeking issuance of an appropriate writ in the matter of inaction of respondents in refusing to make his appointment as Member (Hydropower) of the Pakhtunkhwa Energy Development Organization (PEDO) Board on the ground that he was not holding I" Class Bachelor Degree in Engineering and so he was not possessed of the requisite qualification as prescribed in Pakhtunkhwa Energy

Development Organization Chief Executive Officer and Members of the Executive Committee (Terms and Conditions) Rules, 2024. For the sake of brevity, the prayer clause of writ petition is reproduced herein below:

"IT IS THEREFORE vey humbly prayed that on acceptance of this Writ Petition, . this Honorable Court may very magnanimously hold, declare and order that:

I. The action/inactions of the Respondents including but not limited to the "Impugned decision" of the Respondents and all subsequent or incidental proceedings thereto for not appointing the Petitioner against the Position of Member (Hydropower) PEDO, are contrary to the vested rights of the Petitioner and thus illegal, unlawful, without lawful authority and thus of no legal effect.

II. The Respondents must at once issue a Notification of appointment of the Petitioner as Member (Hydro Power) PEDO and refrain from their illegal acts of acting otherwise.

III. Interim Relief: During the pendency of this Writ Petition, the respondents may very kindly restrained from appointing any other person against the said Posts or initiating fresh process of appointment/filling up the Position of Member (Hydro power) PEDO till the final disposal of instant writ petition. IV. Any other relief, in favor of the Petitioner, deemed just and appropriate. V. Costs throughout."

2.Brief facts of the case are that somewhere in September 2020, the PEDO has advertised certain posts Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

for recruitment including one position of Member (Hydropower) m PEDO Board. The qualification required for applying against the post in question as per advertisement was provided as under:

~•Requisite Qualification and Experience for the posts are as under:- No S. No. Position of Qualification, Experience & Age Posts

• Bachelor's Degree in Civil, Electrical and Mecha~ical Engineering from a recognized University.

•Minimum of 15 years' experience in BPS-17 or Equivalent in relevant field in Government, autonomous, semi-autonomous bodies or private sector of national or international repute with 5 years' experience in Energy & Member Power Sector & 3 years services/experience on

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Hydropower PEDO Top Management Position (Le. BPS-19 & above or Equivalent) having Independent decision Making.

• Preference will be given to Candidates having Hydcl Energy Experience.

•MP - I Scale Salary revised by the Government of Khyber Pakhtunkhwa from time to time plus other allowances and Perks decided by PEDO Pol icy Board.

•Age limit is up to 62 years.

3.Learned counsel for petitioner has appraised us that petitioner's credentials and qualifications etc., were scrutinized by the Executive Committee of PEDO and pre-interview merit list was prepared for the post in question. Whereafter, the petitioner was called for the interview vide letter dated 20.03.2021. The petitioner was interviewed on the date and time notified in the call letter and thereafter it was learnt that petitioner has scored highest marks in surpassing all other competing candidates aspiring for post in question. Petitioner also Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

claims that he was thereafter recommended for appointment for the post in question on first priority being at the top of merit list, however, nothing was heard from the respondents for a considerable length of time.

He states that before filing of instant writ petition, the petitioner has learnt that respondents had decided to re- advertise the post as he was found ineligible for the same on the ground that he was not possessing 1st Class Bachelor Degree in Electrical Engineering as required by Rule (6)(2)(a)(i) of the Pakhtunkhwa Energy Development Organization Chief Executive Officer and Members of the Executive Committee (Terms and Conditions) Rules 2024.

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4.Upon examination of comments furnished by respondents, the factual position asserted by the petitioner to the effect that he was at the top of merit list devised by the Executive Committee of PEDO and was also recommended for appointment in question was not disputed by the other side. Official comments of respondents rather endorse this factual position to that effect and also regarding the grounds of refusal to make appointment of the petitioner.

Abdur Rehman, JSS {DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

5.In support of his petition, learned counsel for petitioner has argued that the qualification and eligibility criteria for the post of Member (Hydropower) was exhaustively provided in section 9(3) of the Pakhtunkhwa Energy Development Organization Act, 2020 (the Act) which does not envisage any condition of having 1st Class Bachelor Degree in Electrical Engineering; sub- section 4 of section 9 do provide scope for rule making but with regard to other terms and conditions of services of the Chief Executive and Members of PEDO Board and not with regard to qualification and eligibility; that the provisions of Rule 6(2)(a)(i) ibid requiring a 1st Class Bachelor Degree in Electrical Engineering etc., are ultra vires and beyond the scope of main provisions of the Act and so same were not to have been given effect to; that the post in question was advertised in September 2020, whereas the Rules ibid have been framed and notified on 17.04.2024 and so they cannot have an application on the advertisement made prior to the promulgation thereof and that these rules will have to be given prospective effect.

6.Conversely, learned counsel for respondents has referred to the provision of section 22 of the Act, which empowers government to make rules for carrying out the Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

purposes of Act and submitted that these are general rules making power vested with the government under which it could competently frame and prescribe further qualification and eligibility criteria in addition to what was provided in section 9(3) of the Act. Based on that, they have submitted that provisions of Rules were fully compliant to the main sections of Act and so refusal of respondents to make appointment of petitioner to the post in question was not liable to be interfered with.

7.We have heard the arguments of both sides and have gone through the record with the invaluable assistance rendered by learned counsel representing them.

8.In the first place, the provisions of section 9 of the Act are the main pivot around which the entire discussion and arguments of the parties have been advanced.

Therefore, it is appropriate to have a careful glance to that provisions of law which reads as under:

"9. Appointment of Chief Executive Officer and Members.--- (1) The Chief Executive Officer, Member Finance, Member Renewable Energy and Member Hydro Power of the PEDO, shall be appointed by Government, on the recommendation of the Policy Board, for a period of three years or at the pleasure of Government, as the case may be.

Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

(2)Notwithstanding anything contained in sub- section (1), the Chief Executive Officer, appointed before the promulgation of this Act, under the repealed Act, shall be deemed to have been appointed under this Act and shall hold office for a period offour (4) years which shall be counted from the date of his appointment under the repealed Act:

Provided that till the constitution of the Executive Committee under this Act, the Policy Board shall exercise all the powers of the Executive Committee under this Act.

(3)The qualification of the Chief Executive Officer and Members of the PEDO.

mentioned in sub-section (] ), shall have at least fifteen vears' experience in the field of energv. engineering. Jaw, administration or finance.

(4)The other terms and conditions of the Chief Executive Officer and Members of PEDO, mentioned in sub-section (1), shall be such as mav be prescribed by rules."

Perusal of aforesaid section of law particularly sub-section 3 clearly g1ves it to understand that parent legislation has exhaustively laid down the qualification for appointment to be made against the post of Chief Executive Officer and Members of PEDO Board and for that no scope for any subordinate legislation in the form of rule making and framing of regulations was forthcoming. No doubt that sub-section 4 of section 9 provides for laying down other terms and conditions of Abdur Rehman, JSS {DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

the aforesaid offices in the manner as may be prescribed by rules. However, the expression "other terms and conditions" used in the very start of sub-section 4 presupposes that law makers have laid down complete qualification in the preceding part of the section for the post in question and it did not allow for any further rule making to be made for the purposes. Moreover, the terms and conditions which are provided for to be devised by rule making were actually other than the qualifications as enumerated in sub-section 3 of the Act.

9.Likewise, general rule making powers of government deriving their force and validity from section 22 of the Act are available with the government but for carrying out the purposes of the Act and not to destroy the same. Besides, it is noted that sub-section 3 of section 9 of the Act was specific provision providing qualification for the office in question with particularity and thus cannot be controlled by general provisions empowering government to frame rules. It is by now a settled principle oflaw that general provisions in a statute do not control specific provisions and so general rule making powers provided under section 22 would not Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

control and affect upon specific provisions of section 9(3) of the Act. Reliance in this respect is placed on the judgments of Superior Court in the case "A. Qutubuddin Khan vs. CHEC Millwala Dredging Co. (Pvt.) Limited" reported in 2014 SCMR 1268, "Golden Oraphies (Pvt.)

Ltd. And 12 others vs. Director of Vigilance, Central Excise, Customs and Sales Tax and others" reported in 1993 SCMR 1635 and "Al-Jehad Trust through Raees- ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another vs. Federation of Pakistan and others" reported as PLD 1997 Supreme Court 84.

10.In addition thereto, it also noted that advertisement for the post in question was made in September 2020, whereas the Rules relied upon by the respondents for ousting the petitioner from the run have been framed and notified on 17.04.2024. And so in that context too, these rules cannot apply to already concluded recruitment processes. Reliance m this regard is placed on the judgments of Superior Court m the case "Controller General of Accounts, Government of Pakistan, Islamabad and others vs. Abdul Waheed and others reported in 2023 SCMR 111, "Water and Power Development Authority, Lahore through Chairman and Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

others vs. Haji Abdul Aziz and others" reported in 2012 SCMR 965, "Sindh Revenue Board through Secretary Government of Sindh vs. Messrs Quick Food Industries (Pvt.) Limited and others" reported in 2023 SCMR 1776 and "Pakistan Electronic Media Regulatory Authority vs. Pakistan Broadcasters Association and others" reported in PLD 2023 Supreme Court 378.

11.In this respect, the stance taken by respondents in their official comments to the effect that by the time the recruitment in question was being processed, no rules were in existence, so the entire process starting from advertisement was not correct, is wholly misconceived because other positions sought to be recruited under the same advertisement have since been filled by respondents and it is only the position of Member (Hydropower) which has been singled out on the basis of some misplaced and misconceived grounds.

12.Lastly, it is again settled principle of law that rules framed under the general rule making power of an Act, are to conform to main provisions of the Act, as the scope of sub-ordinate legislation is provided to give effect to the purposes of the Act and not to destroy the same. As against that, provision of rule 6(2)(a)(i) ibid Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

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prescribing some additional qualification other than those which are exhaustively provided in section 9(3) of the Act are running beyond the scope of main statute and cannot therefore be given effect to for the purpose of deciding the fate of instant petition.

13.Forgoing in view, the writ petition in hand succeeds and is accordingly allowed as prayed for with direction to the respondents to make appointment of petitioner against the post in question forthwith. Parties are left to bear their own cost.

Announced.

Dated: 25.03.2025.

JUDGE

JUDGE

Abdur Rehman, JSS (DB) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah