Illegal Appointments and Promotions in National Accountability Bureau

Illegal Appointments and Promotions in National Accountability Bureau Appointments - Public Sector Organizations Case Laws Constitutional Law Criminal Law Employment & Incentives Federal Public Service Commission Knowledge - Constitutional Law Knowledge - Criminal Law Litigation & Arbitration NAB Promotion Public & Admin Law Selection Process Solutions - Constitutional Law Solutions - Criminal Law Suo Motu Supreme Court Supreme Court Jurisdiction 184(3) Mr. Justice Amir Hani Muslim in his judgment has decided the issue regarding illegal appointments and promotions in National Accountability Bureau in Suo Moto Case No. 13 of 2016 etc.

1. These Suo Moto proceedings were initiated under Article 184 (3) of the Constitution of Pakistan on an anonymous application/letter wherein it was alleged that illegalities, contraventions and violations were committed/made in the appointments made in the National Accountability Bureau (“NAB”). It was, inter alia averred that NAB, which was the apex anti-corruption body of the country, had never come under legal scrutiny and the judgments of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. The Province of Sindh (2015 SCMR 456) were not followed to stream-line the service structure within NAB. It was further stated that there were a number of officers who lacked the eligibility criteria prescribed in the rules made pursuant to the National Accountability Ordinance, 1999 (“the NAB Ordinance”) were still working in NAB in different capacities. The said rules, which have been made pursuant to the NAB Ordinance, are the “National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002” (“the TCS”). Pursuant to the TCS Rules the methods of appointment and qualifications were prescribed in the “National Accountability Bureau (NAB) Methods of Appointment and Qualification (MAQ)” (“the MAQ”). After registering the said application / letter as a Suo Moto Case under Article 184(3) of the Constitution, notices were issued to the learned Attorney General for Pakistan and the Chairman NAB. When this case was fixed on 23.09.2016, it was observed by this Court as under:

“2. We have gone through the concise statement filed by the NAB and have noticed that appointments made in the NAB are, prima facie, violative of the principles enunciated by this Cout in the cases reported as Contempt Proceedings Against Chief Secretary, Sindh and others (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh and others (2015 SCMR 456). The NAB has taken the stance that these judgments do not apply to their employees on the ground that they are not civil servants. This stance is completely in conflict with the observations made by this Court in para 121 of the judgment Ali Azhar Khan Baloch (supra) where this Court has held that the principles laid down in aforesaid judgments would be applicable to the civil servants, Government servants and all other employees serving in different statutory organizations which are working under the administrative control of the Government.”

2. Notice of the proceedings as contemplated under Order XXVII-A CPC was also given to the learned Attorney General for Pakistan vide order dated 24.10.2016. Furthermore, NAB was required to file service profile of the officers whose appointments were challenged through different CMAs, inter alia, on the ground of legal infirmities in their appointments. In compliance with this direction, NAB filed a report (CMA No.8114/2016) setting out the infirmities in the appointments made in NAB, but as this Court was not satisfied with the report it was decided to take up the case of all the officers / officials named in the said report and decide their fate on merits in accordance with law. Notices were issued to all the concerned officers / officials vide order dated 7.12.2016. Thereafter, on 12.01.2017, this Court observed as under:

“We have heard the learned Counsel for the NAB and have perused the report submitted by the committee on the issue of appointments made in the NAB. We are not satisfied with the report. The stance of the NAB that a committee comprising senior officers of the NAB and the Establishment Division was constituted to scan the appointments made in the NAB, is also incorrect, as the report submitted by the NAB reflects that the representative of the Establishment Division has not signed it.

2. With the consent of the learned Counsel for the NAB and the Counsel representing the parties present in Court, we direct the Secretary, Establishment Division, Government of Pakistan, to scrutinize as to whether all the appointments / promotions / absorptions / deputations and appointments on contract basis made in the NAB since 2002 till date are in conformity with the National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) 2002, and National Accountability Bureau Methods of Appointment and Qualification (MAQ) 2002 (amended from time to time) and whether the officers who were appointed/promoted/absorbed/ appointed on deputation or on contract basis hold the qualification/relevant experience in the required field and these appointments were in conformity with the principles laid down by this Court in the cases of Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs Province of Sindh (2015 SCMR 456). A detailed report against each appointment / promotion / absorption / deputation made in BS-16 to BS-22 in the NAB shall be submitted by the Secretary. The Secretary, Establishment Division, may summon the original service profile of the officers of the NAB which shall be provided to him immediately without delay. The Chairman, NAB, and all his subordinates shall extend full co-operation to the Secretary, Establishment Division, in this exercise, which shall be completed within 04 weeks from the date of communication of this Order.

3. A copy of the report submitted by the NAB shall also be provided to the Secretary, Establishment Division, for his perusal which may be of some assistance to him in completion of the task. Copy of this order shall be faxed immediately to the Chairman, NAB, the Secretary, Establishment Division and Attorney General for Pakistan
for their information and compliance.”

3. Thereafter, when this case was fixed on 22.03.2017, it was observed by this Court as under:

“….According to the Secretary, Establishment nine officers lacked inherent qualification for appointment to the post. In addition with regard to the issue of promotion where, according the Secretary, Establishment, there are many inconsistencies. The Secretary, Establishment has not given his own opinion as to whether these officers qualified to be retained in the office or not. Kh. Haris Ahmed, learned Sr. ASC is put on notice to go through the report and make statement as to whether the discrepancies in the appointments / promotions are correct and whether in particular the nine officers pointed out by the Secretary, Establishment had the requisite qualification on the date of their appointment and, if they did not whether such officers were entitled to subsequent promotions. He states that he will examine the report of the Secretary, Establishment with regard to the inherent disqualification of nine officers, the promotion that were given and whether the appointments by promotion or absorption were inconformity with the principles laid down by this Court in the judgments reported as: Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and Ch. Muhammad Akram Vs. Registrar, Islamabad High Court (PLD 2016 SC 961). Kh. Muhammad Haris, learned Sr. ASC will file a report which will cover all material aspects as pointed out by Secretary Establishment…”

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