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Coronavirus
VERY HIGH Source: covid.gov.pk
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6324hr
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ISLAMABAD: The Islamabad High Court (IHC) has declared appointment of Member National Tariff Commission (NTC), Muhammad Saleem, unlawful as rules do not provide for an Advisor to the Prime Minister to conduct interviews of candidates recommended by the Selection Committee for appointment against vacant posts of Members, NTC.

Prime Minister's Advisor on Commerce, Abdul Razak Dawood, was a member of the panel that conducted interviews of candidates for the NTC member.

Naeem Anwar had challenged the appointment of Muhammad Saleem as Member NTC, arguing that since his name was higher up than that of Muhammad Saleem on the merit list prepared by the Selection Committee and forwarded to the Federal Government for appointment as Member, NTC, the appointment of Muhammad Saleem was made by undermining merit and violating the principles of fairness and transparency.

The IHC judge, Miangul Hassan Aurangzeb, in his judgment observed that rules do not envisage an Advisor to the Prime Minister to conduct interviews of candidates recommended by the Selection Committee for appointment against vacant posts of Members; and NTC Rule 7(8)(b) 2018 provides that only the shortlisted candidates shall be called for an interview by the Selection Committee whereas Rule 7(8)(d) provides that after the interviews the Selection Committee shall recommend a panel of candidates "in order of merit" for appointment as Members NTC. Neither does the NTC Act nor the 2018 Rules give any role to the Advisor to the Prime Minister in the selection/appointment of a Member, NTC. The Advisor is a rank outsider to the selection/appointment process of a Member, NTC.

According to a recent judgment, IHC in the case of Syed Pervaiz Zahoor vs. Prime Minister of Pakistan held inter alia that the role of an Advisor to the Prime Minister is not contemplated by the Rules of Business, 1973 in the conduct of the business of executive authority, and that an Advisor cannot interfere or in any manner influence the executive authority, working or functioning of a Division or Ministry or its policy matters. Furthermore, it was held that an Advisor can neither be given nor can he exercise powers or perform functions in derogation of the mandatory scheme of the 1973 Rules read with the provisions of the Constitution, and that an act of an Advisor in breach of the Constitution and the 1973 Rules would be void, without lawful authority and jurisdiction.

Additionally, IHC, in its judgment of December 07, 2020, passed in a writ petition No.01/2020, titled "the Farrukh Nawaz Bhatti vs. Prime Minister of Pakistan", after making a reference to different provisions of the 1973 Rules and the Constitution, unequivocally held that an Advisor to the Prime Minister is not a member of the Cabinet and cannot take part in its proceedings. Furthermore, it was held that an Advisor can also not be a Chairman or Member of the Committee of the Cabinet but can, on special request, be called in by the Committee. The court had struck down a notification appointing an Advisor to the Prime Minister as a Chairman and Member of the Committee of the Cabinet.

The judgement further stated that true, in the case at hand, the role played by the Advisor was only of a recommendatory nature but the same was based on him having conducted interviews for which there was no legal sanction under the provisions of the NTC Act as well as the 2018 Rules. The Advisor could give recommendations to the Prime Minister but the Constitution and the 1973 Rules do not provide for an Advisor to give the recommendations to the Cabinet in the process of making appointments against statutory posts. But for the unauthorized intervention of the Advisor to the Prime Minister in the appointment process for the second vacant post of Member, NTC, the Cabinet would have had the opportunity to independently consider the three applicants recommended by the Selection Committee in order of merit. Such intervention of the Advisor in the appointment process cannot be considered as a valid ground for overturning merit. Therefore, the interviews of the three candidates conducted by the Advisor and the recommendations made by the Advisor on the basis of these interviews were without lawful authority and of no legal effect and are hereby declared as such.

The 2018 Rules explicitly require the Selection Committee to recommend a panel of candidates "in order of merit" for appointment of Members, NTC. The panel of candidates "in order of merit" is prepared by the Selection Committee after evaluating the credentials of the shortlisted candidates and interviewing them. The appointing authority, i.e. the Federal Government, is not bound to select the candidate whose name was at the top of the merit list or for that matter appoint any of the candidates recommended by the Selection Committee. But where a panel of candidates is submitted in order of merit, there must be reasons recorded justifying why the candidate at the top of the merit list is ignored and a candidate lower on the merit list selected. These reasons must be contemporaneously reflected in the decision-making process and cannot be put forth as an afterthought in the form of written comments. When the Selection Committee recommends the names of candidates to the appointing authority in order of merit, the appointing authority is not free to pick and choose any person from the merit list and appoint him ignoring the claim of persons over and above him in the merit list.

The IHC judge in his judgement says that since the appointment of respondent Muhammad Saleem as Member, NTC is found to be the product of injudicious selection, the petition of Naeem Anwar is allowed and the process adopted for the appointment of Muhammad Saleem as Member, NTC is declared to be in violation of the procedure provided in Rule 7(8) of the 2018 Rules, and therefore declared as unlawful. The appointment of respondent Muhammad Saleem as Member, NTC is set aside.

The Ministry of Commerce and Textile has been directed to submit a summary (which shall not include the recommendations of the Advisor to the Prime Minister on Commerce and Textile or any reference to interviews conducted by him) regarding the selection of one Member, NTC on the basis of the unanimous recommendation of the Selection Committee to the Cabinet for a decision in the matter in accordance with the law. This judgement shall remain in abeyance for a period of one month from June 24, 2021 and during this period the Cabinet/Federal Government is expected to take a decision in the matter on a summary to be submitted by the Ministry of Commerce and Textile. There shall be no order as to costs.

Copyright Business Recorder, 2021

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