2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S. 3 & Preamble—Oil and Gas Authority—Autonomy, maintenance of—Principle—Autonomy of Oil and Gas Regulatory Authority (OGRA) is only possible when appointments to key positions in these regulators are made in a demonstrably transparent manner; that is, by ensuring implementation of the checks which Oil and Gas Regulatory Authority Ordinance, 2002, lays down for such appointments.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S. 3(4)—Appointment of Chairman of Oil and Gas Regulatory Authority—Selection criteria—Legislature, by providing such merit based criteria had made its intention abundantly clear as to the sort of person who should occupy the position of Chairman—Considerations based on nepotism, favouritism or personal whims and fancies have been eliminated by the Oil and Gas Regulatory Authority Ordinance, 2002, in categorical terms and has circumscribed the Executive’s discretion in appointment of Chairman—Executive must abide by and obey the command of the Legislature and if it fails to do so, the court may be obliged to step in and ensure such obedience.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S. 3—Constitution of Pakistan, Art.184(3)—Constitutional petition under Art.184(3) of the Constitution—Scope—Appointment of Chairman of Oil and Gas Regulatory Authority—Mala fides—Proof—Simply because petitioner might have been a contender for the office of Chairman OGRA, the same did not per se translate into mala fides.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S. 3—Constitution of Pakistan, Art.184(3)—Under Art.184(3) of the Constitution—Maintainability—Petitioner filed direct petition before Supreme Court assailing appointment of respondent as Chairman of Oil and Gas Regulatory Authority (OGRA), being illegal and unlawful—Respondent raised the plea that direct petition before Supreme Court was not maintainable—Validity—Number of Articles of the Constitution made it clear that Constitution was not silent about economic life of the nation and concomitant fundamental rights of its citizens; there was ever-greater nexus between proper and independent functioning of regulatory bodies and economic life of the nation and its citizens and such nexus was fully recognized by the Legislature in its use of language employed by Oil and Gas Regulatory Authority Ordinance, 2002—Regulatory bodies function competently and independently only once their autonomy was ensured through enforcement of legal checks upon appointments to important positions therein—Validity of the process of appointment of the Chairman OGRA was a matter of public importance which had a direct linkage with fundamental rights of the people of Pakistan and warranted exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution—In order to enforce fundamental rights of the people of Pakistan, it was essential that good governance in OGRA was ensured—To achieve such objectives it was crucial that “highly qualified” persons of “known competence and integrity” were appointed as Chairman and Members of OGRA—Such could only happen if the highest and the most exacting stand ards of diligence, transparency and probity were employed in selection of such persons—Same having not been done, the selection process seriously and irretrievably undermined the merit—Such action potentially resulted in direct harm to the people of Pakistan and also contributed towards heart-burn and disillusionment amongst genuine and competent aspirants for public office—Direct impact of ignoring merit and eligibility criteria prescribed by Oil and Gas Regulatory Authority Ordinance, 2002, also had the potential of causing harshly adverse consequences including unjustified inflation in retail prices for consumers, thus depriving the people of Pakistan of their incomes, assets, quality of life and dignity—Selection process of authorities, was inherently unsuited for identifying and coming up with a suitable person for appointment as Chairman OGRA—Supreme Court directed the authorities that the appointment of respondent was void ab inito; that as a consequence, the notification of appointment of respondent was set aside and the position of Chairman, OGRA was declared to be vacant; that the position would be filled after adhering to credible rigorous and transparent selection process undertaken with due diligence along the lines indicated by Supreme Court or along such lines as the Executive might delineate ensuring obedience to the legislative command given in Oil and Gas Regulatory Authority Ordinance, 2002; that the salary and value of perquisites and benefits availed by respondent from the date of his appointment till the date of judgment passed by Supreme Court would be recovered from him at the earliest; that the National Accountability Bureau would probe into and prepare a report on the matters of the serious allegations enumerated in the constitutional petition including those enumerated in the judgment; the conduct of State functionaries who were engaged in the process of selection of respondent as Chairman, OGRA and their possible culpability for malfeasance, non-feasance and other wrong doing; and the misuse of public office and involvement of holders of public office in corruption or corrupt practices in terms of National Accountability Ordinance, 1999; that the Chairman NAB would proceed in the matter with promptness and diligence required in the matter; that the report of NAB would be submitted in the Supreme Court within 45 days from the date of judgment and that the matter be placed before Supreme Court after 45 days for such further orders as would be considered appropriate.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S. 3—Constitution of Pakistan, Arts. 3, 4, 5(2), 9, 14, 18, 23, 24 & 184(3)—Suo motu powers of Supreme Court—Scope—Fundamental rights—Appointment of Chairman of Oil and Gas Regulatory Authority—Eligibility—Rights of citizens would be adversely affected if Chairman or other Members of Oil and Gas Regulatory Authority are appointed though they are not eligible—Any increase in consumer prices, which results from lack of competence or integrity or because of inefficient regulation would result in depriving citizens of their fundamental rights guaranteed by Arts.9, 14, 18, 23 and 24 of the Constitution because scales would impermissibly stand tilted against citizens and in favour of those engaged in regulated activities—If taxes or fees are spent in violation of law, it would amount to breach of Arts.3, 4 and 5(2) of Constitution and would also constitute denial of citizen’s fundamental rights guaranteed by Arts 9, 14, 18, 23 and 24 of the Constitution—Oil and Gas regulatory Authority is the institution which is mandated to regulate Oil and Gas trade and to determine tariffs and fix prices for consumers and its effective functioning has a direct nexus with securing fundamental rights of the people of Pakistan.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S.3—Appointment of Chairman of Oil and Gas Regulatory Authority—Validity—To test the validity of appointment process, it would be useful to adopt a test based on the considerations that as to whether an objective selection procedure was prescribed; that if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise i.e. selection of the sort of candidate envisaged in S.3 of Oil and Gas Regulatory Authority Ordinance, 2002; and that if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law.
2012 PLD 132 SUPREME-COURT
MUHAMMAD YASIN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad
S.3—Constitution of Pakistan, Art. 184 (3)—Constitutional petition under Art.184(3) of the Constitution—Appointment of Chairman of Oil and Gas Regulatory Authority—Judicial review—Scope—Constitution is organized essentially on the principle of separation of powers between the Executive, the Legislature and the Judicature; in such scheme, to each is assigned its domain and sphere of operation—Power to make appointments in bodies such as Oil and Gas Regulatory Authority is by and large, the province of the Executive—Ordinarily, Courts do not go into a detailed scrutiny of such matter and defer to the Executive’s discretion in exercise of such power, if the command s of the Legislature have been complied with—Court’s deference, to the Executive authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within legal limits which circumscribe its power—Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner and exercise of such powers can be judicially reviewed—Provisions of Oil and Gas Regulatory Authority Ordinance, 2002, do not state that Federal Government may “in its absolute and unfettered discretion” appoint a Chairman—Quite to the contrary, the Legislature has specified measurable objective criteria which must be adhered to in making such appointment—If the criteria prescribed by law are not met, any appointment made would be violative of the law and would, therefore, necessarily be subject to judicial review.
