Shahzad Hussain VS Competition Commission of Pakistan etc

I N rHe lsleMagnp HtcH couRt. lsLAmeaeo.

No. IHC/ludt. Depft.

(REVTSED FORM OF BLUE SLIP)

Case No . AtP- 7 h Eq -fir Titled.

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ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLATIABAD

IUDICIAL DEPARTMENT

W.P. NO: 459t201+

SHAHZAD HUSSAIN VERSUS COMPETITION COMMISSION OF ETC

Serlal No. of Date or order Order wlth slgnaftres of fudge, and that of pardes or counset, where order of proceedlng. of proceedlng necesaly.

I 2 3

05 3.12.2014 Mr. Muhammad Amin Farooqi, Advocate for petitloner ln WP No. 3459/2014, Banlster Falsal Khan, Advocate for petitioner in WP No. 35+8t2014, Sultan Mazhar Shair and Mlan Saml Ud Din, Advocates for respondents, Raja Khalid Mehmood Khan, learned Standing Counsel.

ORDER.

MUHAMMAD KHAN KASI. CI:

Present petltion as well as WP No. 3548/ZOl4 involve common proposition of law and facq therefore, belng declded through this slngle Order.

2.Brlef facts are that petitloners are Jolnt Director (Admlnlstration- Grade-7) and Director (Advocacy) ln Competltion Commlslon of Pakistan. They are aggrieved of common transfer order dated 8.7.2014 on the ground that lt has been lsued in qulck succession of the series of transfer orders.

3.Petitloner Shahzad Husaln clalms to have been prevlously transfened vide orders dated I1.10.2013, 9.1.2014 s. 4.7.201d while petitloner Ahmed eadtr alleges that he has been previously transfened vide orders dated 3.1.2013, 10.09.2013 & ZO.O3.ZOI4 .

4.Learned counsel for petitloners submits that they have been subjected to the malafide transfer orders ln order to vlctimize them for thelr working in association with previous chairperson against whom the incumbent Chalrman CCP has nourlshed professlonal blas.

5.Learned Counsel adopted that under Section 14 of the Competitlon Commislon of Pakistan Act, 2010 minlmum five members are requlred for constitution of commisslon while only three members were appolnted till the time of lsulng the lmpugned order due to which commision is not properly constituted.

6, lt ls also argued that respondent No.3 holdlng the post of Chairman CCP on actlng charge basis ls required to run day to day affairs of the organlzatlon, therefore, he cannot make decisions like establlshment of regional offices havlng long term financial lmpact and transfers ln the said offices are not lawful in pursuance of that scheme.

7.Learned Counsel malntained that under Section 23 of CCP Act, 2Ol0 the powers to make appolntments and to determine terms and conditlons of servlce ls vested in the Competition Commlsion but through the Regulatlons, 2OO7 it has been delegated to the Chairman and other members as well as Officerc against the settled principle that no delegate can fufther delegate. ln this regard learned counsel placed rellance on ,Ashraf Tlwana,s Cese' [2013 SCMR I l59l

8.Learned counsel next submits that by way of succeslve transfer ordery petitloners have been deprived of the valuable right of earning evaluation reports which are contributory to their career advancement.

9.Learned counsel lastly submis that the transfer orderc without completlng normal tenure of posting have been denounced ln varlous Judgmens passed by the Hon'ble Superior Cours of the country. He ptaced reliance on the case laws titled as 'tMst Anlta Twab,s caft,' ttzahtdAtrtarVsGwtof pwpbetd,

[PLD 2013 SC 195],

[PLD 201I SC 963], "Hamed AldrtarNlaflsca*,, llg96 SCMR ll85], "ir$rrz Abdul Karlm Shourlsh case,, [PLD 1969 hhore 2891 ,"Ctvll Avladon AuthorIty, vs. Javd Ithrnfl' [2009 SCMR 956] & t'Ghaanrfar AilYsZIBLetl, [20r r PLc (cs.) 648 IHCI.

10.On the other hand, learned counset for respondenUCCP reslsted the petitlon white submltting that petltlons are not maintalnable as the petitionerc seek to enforce non statutory rules and have lnvoked constitutlonal lurisdlction without availing alternate remedy of departmental representation under Regutation- 5, Chapter 12 of the Competition Commision (Service) Regulatlons, 2OO7.

I l. lt ls also contended that petitloners have approached this Court with unclean hands by lncorrectly posing them to be clvil seruants while they are not so.

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Learned counsel further submlts that petltioners are governed by Competition Commission Service Regulations, 2OO7 and by virtue of Regulation 7 of the said Regulations employees of CCP are liable to serve anywhere ln Pakistan.

12.Moreover, the ludgmens relied upon are of no relevance in the instant case as the tenure of three years is fixed for posting of a civil servant while the petitioners being employees of an independent authority are subiect to terms and conditions of their appointment as well as Regulations e[ SOPs isued from time to time while the rules laid down for civil seruants are not applicable in their case.

13.lt is further submitted that petitioners have levelled baseless allegations against the administration without putting forth any reliable evidence.

14.ln support of their contentions learned counsel placed reliance on case laws titled as "Dosanl Trrvels Vs M/S Travel Shop (hn) Ltd. Etro [PLD 2014 SC 1], Sou Moto Case NO l8 of 2O1O [PLD 201 I SC 195], 'Syed Mehmood Akhtar Naqvl etc Vs FOP etc Ms Antta Turab's Gse" [PLD 2013 SC 1951, "Ghulam Rasool Vs Gow of Paldstan" [CF No. 2124 of 20l3l & 't{odern Tortile Mills L[mlted Vs C.ollector of Gnteral F.xclse" t2(X)0 CLC 1583 Karachll

15.Heard Et record perused.

16.Underuking the determination of the maintainability first, it is admitted position that pursuant to Schedule ll of the Rules of Business, 1973, Competltion Commission of Pakistan is an authority which performs functions under the administrative oversight and receives financial grants from the Federal Government through Ministry of Finance. Besides that the employees of CCP are performing duties in connection with the affairs of Federation and in exercise of powers under Section 23, the Commission has determined terms and conditions of its employees through Competition Commission (Seruice) Regulations, 2OO7, which have been published in the Gazette of Pakistan, therefore, the same carry statutory character.

17.So far as the contention regarding availability of alternate remedy is concerned, the impugned order

pertains to matter of transfer which has not been exhaustively dealt by the CCP Service Regulations, 2OO7 as protection regarding minimum term of posting was notifled through SOP dated 25.07.2014, subsequent to filling of writ petitions before this Court. Moreover, due to alleged compositional flaw under Section 14 of CCP Act, 2010 and apprehension of mala fide lurking in the minds of petitioners, the alternate remedy cannot be called meaningfi,rl or efficacious. lt goes without mentioning that availability of alternate remedy does not automatically debar constitutional iurisdiction and this Court can exercise jurisdiction in presence of alternate remedy where the order impugned is patently illegal. Guidance is sougftt from case of "Dr. Sher Ngarr, ffian Niad Ys Nl S. Hablb'[201 ] SCMR l8l3] wherein the test envisaged by the Hon'ble Apex Court allows grant of relief under Article 199 of the Constitutlon in presence of alternate remedy where the other remedy is not equally convenient, beneficial and effective. ln the same sequel the obiection upon maintainability of petitions is turned down.

18.The factum of transfer orders in quick succession has been admitted by the respondent's side, therefore, the contention stands established, however the defence regarding non-applicability of three years tenure of posting in view of independent rules is not tenable because Regulation 7 Chapter 12 of the CCP Seruice Regulation, 2W7 prescribes a general principle that every employee is liable to sewe anywhere in the country and at the cost of repetition it is mentioned that impugned order was passed prior to issuance of Transfer Policy through SOP dated 25.07.2014 and same cannot be presumed to carry retrospective effect.

19.lt is worth mentioning that the regulation ibid does not confer unfettered and arbitrary powers upon the authority to make transfer orderc whimsically without regard to reason and administrative propriety.

20.ln the case titled as "Knwala l'fitttrrmnd Atif Vs FOP" IPLD 2014 SC 205] the Hon'ble Supreme Court observed that "government and its instrumentalities were expected to act fairly, iuxly and in a transparent

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manner,..,trans@rency lay at the hean of every transaction enteredintoby or onbehalf of apublicentw".

21.lf it is presumed that the normal tenure of three years for posting is not applicable to the respondent- deparcment even then in absence of any rule to the contrary, general principle of fairness and reasonableness is applicable, therefore, four postings, transfers within short span of nine months cannot be held reasonable by employing yardstick of administrative freedom. Guidance is sought from the case of ttWalayat Nt Mir, Ys. Pallstan lntcmattonal Nrlhes Carwratton etr" 17995 SCMR 650I wherein the Hon'ble Supreme Court held as follows;- "Discretion to be exercised has to be judged and considered in the background of facts and circumstances of each case. Discretion is not to be exercised on whims, caprices and mood of authorities. Exercise of discretion is circumscribed by principle of justice and fairness."

22.ln view of above, the petitions are allowed, consequently the impugned order dated 08.07.2014 is set aside. No order as to costs.

Umar

APPROVED FOR REPORTING

Uploaded By: Engr. Umer Rasheed Dar