Stereo.

HCJDA 38
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Writ Petition No. 5801/2022

Muhammad Tahir Nawaz Cheema etc.
Vs.
Federation of Pakistan etc.

JUDGMENT
Date of hearing 12.05.2022
M/s Shahid Anwar Bajwa, Ijaz Ahmad
Awan, Kh. Mohsin Abbas, Adnan Qamar
For the Petitioners: Malik, Sultan Ali Awan, Rana Muhammad
Nafees and Abdul Rehman Bajwa,
Advocates.
Syed Muhammad Haider Kazmi, Assistant
For Respondents No.1 & 2:
Attorney General.
For Respondents No.3 to 5: Hafiz Tariq Nasim, Advocate.

Tariq Saleem Sheikh, J:- This consolidated judgment shall

decide Writ Petition No. 5801/2022 and those mentioned in the Schedule
hereto.

2. The Petitioners are the regular employees of National

Engineering Services Pakistan (Private) Limited (“NESPAK”). According
to their terms of service, either party could terminate the employment on
three months’ written notice or payment of three months’ salary in lieu
thereof without assigning any reason. On 11.01.2022 NESPAK invoked
the said clause and “dispensed with” the Petitioners’ services “with
immediate effect.” They have challenged their Termination Letters
(the “Impugned Termination Letters”) through these petitions under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
(the “Constitution”).

3. Mr. Shahid Anwar Bajwa, Advocate, the Petitioners’ learned

counsel, contends that the Securities & Exchange Commission of Pakistan
(“SECP”) has framed the Public Sector Companies (Corporate
Governance) Rules, 2013 (the “Corporate Governance Rules”) to regulate
Writ Petition No. 5801/2022
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the public sector companies as defined in Rule 2(1)(g). NESPAK is

subject to those Rules as it is a State-owned enterprise. It has terminated
the Petitioners in complete disregard thereof with the malafide intent to
create room for political appointments. He argues that the Impugned
Termination Letters are bad in law and thus liable to be quashed.

4. The counsel for NESPAK (Respondents No.3) and its

principal officers (Respondents No.4 & 5), Hafiz Tariq Nasim, Advocate,
submits that NESPAK has framed the Employees Service Rules which
apply to all classes of whole-time monthly paid employees of the
company except those on deputation or contract. They are in force since
1973 with minor modifications. The SECP notified the Corporate
Governance Rules in 2013 to improve the performance and profitability of
the public sector companies by bringing in an efficient management and
creating an environment of trust, transparency and accountability. They
do not bar such companies from framing any other rules or issuing
guidelines or instructions to further improve their working. NESPAK’s
Employees Service Rules supplement the Corporate Governance Rules
and are thus valid and enforceable. Mr. Nasim contends that the
Petitioners’ grievance relates to the terms and conditions of service which
are the subject of the Employees Service Rules. Since the said Rules are
non-statutory, the Petitioners are governed by the principle of master and
servant and this petition is not maintainable. On merits, the counsel
contends that the Petitioners’ Letters of Appointment perspicuously state
that either party could break off after three months’ written notice or
payment of three months’ salary in lieu thereof without assigning any
reason. NESPAK has lawfully exercised that right so they have no cause
of action.

5. The Assistant Attorney General, who represents Respondents

No.1 & 2, has adopted Mr. Nasim’s arguments.

Discussion

6. The Respondents have raised preliminary objection regarding

maintainability of these petitions. I would like to decide it before dilating
upon merits.
Writ Petition No. 5801/2022
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7. An aggrieved party can invoke the jurisdiction of this Court

under Article 199(1)(a) of the Constitution against a person performing,
within its territorial jurisdiction, functions in connection with the affairs
of the federation, or a province or a local authority. Article 199(5)
elucidates that “person” includes any body politic or body corporate, any
authority controlled by the Federal Government or a Provincial
Government, and any court or tribunal, other than the Supreme Court, a
High Court or a court or tribunal established under a law relating to the
armed forces of Pakistan. The functions of the State in today’s world have
increased manifold which are sometimes performed through companies
established by statutes or under the relevant company law. Therefore, the
courts generally apply what is called the “function test” to determine
whether a body or an entity is a “person” within the meaning of Article
199 of the Constitution. In Salahuddin and 2 others v. Frontier Sugar
Mills & Distillery Ltd. and 10 others (PLD 1975 SC 244) the Hon’ble
Supreme Court of Pakistan held:

“The primary test must always be whether the functions entrusted to the
organization or the person concerned are indeed functions of the State
involving some exercise of sovereign or public power; whether the
control of the organization vests in a substantial manner in the hands of
the Government; and whether the bulk of the funds is provided by the
State. If these conditions are fulfilled, then the person, including a body
politic or body corporate, may indeed be regarded as a person
performing functions in connection with the affairs of the Federation or
a Province; otherwise not.”

In Pakistan International Airline Corporation and others v.

Tanweer-ur-Rehman and others (PLD 2010 SC 676) the apex Court laid
down the following three-fold test:

(i) Whether the functions entrusted to the organization or person

concerned are indeed functions of the State involving some
exercise of sovereign or public power;

(ii) Whether the control of the organization vests in a substantial

manner in the hands of Government; and

(iii) Whether the bulk of funds is provided by the State.

The above view was reaffirmed in Abdul Wahab and others

v. HBL and others (2013 SCMR 1383); Pakistan Defence Officers’
Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed
(2013 SCMR 1707); Pir Imran Sajid and others v. Managing
Writ Petition No. 5801/2022
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Director/General Manager Telephone Industries of Pakistan and others

(2015 SCMR 1257); and Human Rights Case No.3564 of 2018 – In the
matter regarding appointment of Managing Director, Pakistan
Television Corporation (2019 SCMR 1).

8. The Corporate Governance Rules, which were framed under

section 506 of the Companies Ordinance, 1984, read with clause (b) of
section 43 of the Securities and Exchange Commission of Pakistan, 1997,
have made the aforementioned determination somewhat easier by defining
the “Public Sector Company”. Rule 2(1)(g) reads:

(g) “Public Sector Company” means a company, whether public or

private, which is directly or indirectly controlled, beneficially owned or
not less than fifty percent of the voting securities or voting power of
which are held by the Government or any instrumentality or agency of
the Government or a statutory body, or in respect of which the
Government or any instrumentality or agency of the Government or a
statutory body, has otherwise power to elect, nominate or appoint
majority of its directors, and includes a public sector association not for
profit, licensed under section 42 of the Ordinance.

9. Admittedly, NESPAK was established by the Government of

Pakistan in 1973 as a private limited company under the Companies Act,
1913. The objective was to create a pool of talented engineers and attain
self-reliance in engineering consultancy and replace foreign consultants.1
At present it has a paid-up capital of Rs.5,000,000/- divided into 500,000
ordinary shares of Rs.10/- each. Out of these the Ministry of Energy
(Power Division), Government of Pakistan, holds 499,993 shares while
one share each is held by the Secretary, Ministry of Energy (Power
Division), the Additional Chief Secretary, Ministry of Finance, the
representatives of the Governments of Balochistan, KPK, Punjab and
Sindh and the Managing Director/President, NESPAK. The company’s
Board of Directors is also appointed by the Prime Minister. Importantly, it
performs various functions which are essentially those of the State and,
through the exercise of public power, creates public employments. Hence,
NESPAK not only qualifies the above-mentioned “function test” by all
standards but also falls within the definition of the Public Sector
Company given in Rule 2(1)(g) of the Corporate Governance Rules. It is,

1
https://www.nespak.com.pk
Writ Petition No. 5801/2022
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therefore, a “person” within the meaning of Article 199(1)(a) of the

Constitution read with Article 199(5) thereof.

10. Mr. Nasim does not dispute the above legal position. His
contention is that the employees of only those organizations can approach
the High Court under Article 199 of the Constitution whose services are
governed by statutory rules. Inasmuch as the Employees Service Rules of
NESPAK are non-statutory, these petitions are not competent. But what
are the “statutory rules”? In Pakistan Red Crescent Society and another
v. Syed Nazir Gillani (PLD 2005 SC 806) the Hon’ble Supreme Court of
Pakistan explained this concept as under:

“It is well-settled by now that where the Government while setting up a

Corporation does not reserve to itself the power to regulate the terms of
service of the Corporation’s employees under the relevant statute and
does not prescribe any condition, but leaves it to the discretion of the
Corporation by empowering it to frame rules or regulations in respect
thereof without the Government’s intervention, then the Corporation
will be the sole arbiter in the matter of prescribing the terms and
conditions of its employees and will be competent to deal with them in
accordance with the terms and conditions prescribed by it. In such a
case neither a suit nor a writ petition for the relief of reinstatement will
be competent and the remedy of an employee, for wrongful dismissal
from or of termination of service, will be a suit for damages as the
principle of master and servant will be applicable. However, where the
terms and conditions of service of an employee of a statutory
Corporation is regulated by a statute or statutory rules, any action
prejudicial taken against him in derogation or in violation of the statute
and/or the statutory rules will give him a cause of action to file a suit or
a writ petition for the relief of reinstatement, as the power of the
Corporation will be fettered with the statutory provisions and the
principle of master and servant will not be applicable. For the purpose
of deciding the factum, whether the rules or the regulations of a
Corporation have the statutory force, the determining factor will not be
their form or name, but the source under which they have been
framed.”

11. In Chairman, State Life Insurance Corporation and others

v. Hamayun Irfan and 2 others (2010 SCMR 1495) the apex Court held:

“Generally speaking, a statutory regulation means regulations which

are legislative (as opposed to executive) made by a rule-making
authority in exercise of statutory power with the approval of the central
government or provincial government. Precisely it is the exercise of the
delegated legislative power by the rule-making authority. Ordinarily it
is also necessary that making and promulgation of a rule should be
attended by certain formalities e.g. publication in government gazette
as law laid down by this Court in various pronouncements.”

12. In Zarai Taraqiati Bank Limited and others v. Said

Rehman and others (2013 SCMR 642) the Hon’ble Supreme Court held
that the statutory rules have the following three characteristics:
Writ Petition No. 5801/2022
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(i) Rules or regulations are framed by statutory or public body;

(ii) Those are framed under the authority or powers conferred in the
statute;

(iii) Those have statutory governmental approval or statutory sanction.

13. A further reference may be made to Pakistan Defence

Officers’ Housing Authority v. Mrs. Itrat Sajjad Khan and others
(2017 SCMR 2010) in which the Hon’ble Supreme Court held:

“The test to gauge as to whether the service rules are statutory or not
was laid down by this Court as far back as in the year 1984 in the case
of the Principal Cadet College, Kohat and another v. Mohammad
Shoab Qureshi (PLD 1984 SC 170) by holding that unless rules of
service of a statutory body are made or approved by the Government,
such rules could not be regarded as statutory but mere instructions for
guidance. However, in the case of Shafique Ahmed Khan v. NESCOM
through Chairman, Islamabad (PLD 2016 SC 377) as well as in the
case of Muhammad Zaman and others v. Government of Pakistan
(2017 SCMR 571), this Court while widening the scope of such
criterion held that ‘the test of whether rules/regulations are statutory or
otherwise is not solely whether their framing requires approval of the
Federal Government or not, rather it is the nature and area of efficacy
which determine their status. Rules dealing with instructions for
internal control or management are treated as non-statutory while those,
whose area of efficacy is broader and/or complementary to the parent
statute in the matter of crucial importance, are statutory.’ ”

14. It would not be out of place to mention here that rules do not
become statutory merely because a corporation has adopted any rules
framed by the Government or has made them applicable by reference.
Reliance is placed on M.H. Mirza v. Federation of Pakistan and 2 others
(1994 SCMR 1024).

15. The question as to how the statutory and non-statutory rules

affect the rights of the employees has been discussed in a number of
judgments.2 The law is now well settled that the employees of a statutory
body whose conditions of service are not regulated by “rules/regulations
framed under the Statute but only by Rules or Instructions issued for its
internal use, any violation thereof cannot normally be enforced through

2
Some of the leading cases include: The Principal, Cadet College, Kohat, and another v. Muhammad
Shoab Qureshi (PLD 1984 SC 170); Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232);
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan and others (PLD 2006SC 602);
Azizullah Memon v. Province of Sindh and another (2007 SCMR 229); Executive Council, Allama Iqbal
Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484);
Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others
(PLD 2010 SC 676); Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others
(PLD 2011 SC 132); Zarai Taraqiati Bank Limited and others v. Said Rehman and others
(2013 SCMR 642); Abdul Wahab and others v. HBL and others (2013 SCMR 1383); Pakistan Defence
Officers’ Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed (2013 SCMR 1707);
Muhammad Zaman and others v. Government of Pakistan and others (2017 SCMR 571); and Pakistan
Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010).
Writ Petition No. 5801/2022
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writ jurisdiction and they would be governed by the principle of ‘Master

and Servant’.”3 There are, however, some exceptions to this canon out of
which the following three are significant: first, the statutory body has
violated the service rules or regulations framed by it under the powers
derived from the statute and there is no adequate or efficacious remedy.4
Second, the body has disregarded the procedural requirements and the
principles of natural justice while taking action in a service matter.5 Third,
there is a statutory intervention.6

16. The rule of master and servant is not applicable to those

cases also where there is violation of any law holding the field.7 Strictly
speaking, this is an independent ground for judicial review, but it may be
considered an extension of the third exception mentioned in the preceding
paragraph. Here, the expression “violation of law” would not be confined
to violation of any specific provision of a statute but, as observed by
Hamoodur Rehman J. in Government of West Pakistan and another v.
Begum Agha Abdul-Karim Shorish Kashmiri (PLD 1969 SC 14), it
would include all that is treated as law in this country, including the
judicial principles laid down by the superior courts from time to time.8 In
Faisal Sultan v. E.D.O. (Education) and others [2011 PLC (C.S.) 419] it
was held that the right to procedural due process and the right to be
treated fairly are also intrinsic part of “law”.

17. In the present cases the Petitioners claim that NESPAK has
issued the Impugned Termination Letters without procedural due process

3
Pakistan Defence Officers’ Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed
(2013 SCMR 1707).
4
Pakistan Defence Officers’ Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed
(2013 SCMR 1707); Muhammad Rafi and another v. Federation of Pakistan and others
(2016 SCMR 2146); and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and
others (2017 SCMR 2010).
5
ibid.
6
Pakistan Defence Officers’ Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed
(2013 SCMR 1707).
7
Muhammad Dawood and others v. Federation of Pakistan and others [2007 PLC (C.S.) 1046].
This view was affirmed by the Hon’ble Supreme Court in Civil Aviation Authority v. Javed Ahmad and
another (2009 SCMR 956); and Pakistan Defence Officers’ Housing Authority and others v. Lt.-Col.
Syed Jawaid Ahmed (2013 SCMR 1707).
8
This statement of law was reaffirmed by the Hon’ble Supreme Court in Government of Pakistan
through Director General, Ministry of Interior, Islamabad and others v. Farheen Rashid
(2011 SCMR 1).
Writ Petition No. 5801/2022
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and violated the Corporate Governance Rules. Inasmuch as these Rules

are statutory and have the same force as a law enacted by the Parliament,
the Petitioners have an independent cause of action. I, therefore, hold that
these petitions are maintainable. The Respondents’ objection is repelled.

18. The judgment delivered by a Division Bench of this Court in

Dr. Tahir Masud v. Amjad Ali Khan and 4 others [2019 PLC (C.S.)
1167], which was heavily relied upon by Mr. Nasim in support of his
objection, is distinguishable on facts so it does not run counter to my
holding. In that case R was the Managing Director/CEO of NESPAK who
attained the age of superannuation and was, therefore, retired w.e.f.
9.4.2017 through order dated 10.4.2017. He claimed that he has been re-
appointed for three years by the company’s Board of Directors before his
superannuation so his retirement was illegal. Accordingly, he challenged
order dated 10.4.2017 in this Court in its constitutional jurisdiction.
NESPAK argued that the writ petition was not maintainable as the
appointment/re-appointment of the Managing Director/CEO was
governed by the company’s Chief Executive Service Rules, 1977, which
were non-statutory. The learned Division Bench upheld the objection –
with which I respectfully agree. In contrast, the cause of action in the
petitions before me has arisen from NESPAK’s alleged infarction of the
Corporate Governance Rules which are statutory. The Petitioners’ claim is
not premised on the company’s Employees Service Rules and they do not
seek enforcement thereof. The said Rules are not in question at all.

19. Let’s now turn to the merits. The Corporate Governance

Rules, as adumbrated, aim at good governance of the Public Sector
Companies and for this purpose contemplate a sound and prudent
management. Rule 3 stipulates that their Board of Directors shall consist
of executive and non-executive directors, including independent directors
and those representing minority interests, with the requisite range of
skills, competence, knowledge, experience and approach so that the Board
as a group includes core competencies and diversity considered relevant
in the context of the company’s operations. Rule 5 describes the
responsibilities, powers and functions of the Board and Rule 5(7)
obligates it to formulate significant policies for smooth and efficient
running of the company which, as per clause (q) of Rule 5(7), includes
Writ Petition No. 5801/2022
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human resource policy and succession planning. Rule 12 mandates that

the Board shall set up the committees stipulated therein for support in the
efficient performance of its functions and assistance in the decision-
making process. The human resource committee is one of them and it is
required to deal with all employees-related matters, including recruitment,
training, remuneration, performance evaluation, succession planning, and
measures for effective utilization of the company’s employees. It is
important to see whether the above-mentioned provisions are mandatory.

20. The general principle is that the use of the word “shall”
connotes that the provision is mandatory.9 However, other factors such as
the object and purpose of the statute and the fact whether the legislature
has provided any penal consequences for non-compliance are also
instructive. In Province of the Punjab and others v. Javed Iqbal
(2021 SCMR 328) the Hon’ble Supreme Court held:

“In order to determine whether the aforesaid proviso is directory or

mandatory, the duty of the court is to try to unravel the real intention
of the legislature. The ultimate test is the intent of the legislature and
not the language in which the intent is clothed. The object and
purpose of enacting the provision provide a strong and clear
indicator for ascertaining such intent of the legislature. The intention
of the legislature must govern and this is to be ascertained not only
from the phraseology of the provision but also by considering its
nature, its object, and the consequences which would follow from
construing it one way or the other. This exercise entails careful
examination of the scheme of the Act in order to discover the real
purpose and object of the Act. A provision in a statute is mandatory
if the omission to follow it renders the proceedings to which it
relates illegal and void, while a provision is directory if its
observance is not necessary to the validity of the proceeding. One of
the important test that must always be employed in order to
determine whether a provision is mandatory or directory in character
is to consider whether the non-compliance of a particular provision
causes inconvenience or injustice and, if it does, the court would say
that that provision must be complied with and that it is obligatory in
its character.”

21. A Full Bench of this Court has held in Mst. Ubaida Manzoor
v. Government of the Punjab through Secretary Education (Schools),
Lahore and 4 others [2012 PLC (C.S.) 101] that the canons for
interpretation of statutes apply to interpretation of Rules with the same
force. The Corporate Governance Rules, as observed earlier, seek to

9
State of Haryana and another v. Raghubir Dayal [(1995) 1 SCC 133]; and Province of Punjab
through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company
Limited (MBCL) and another (2021 SCMR 305).
Writ Petition No. 5801/2022
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promote good governance in the Public Sector Companies by improving

efficiency, discipline and accountability. Insofar as Rules 5 & 12 are
concerned, they use the word “shall” and their objective is to structure the
discretionary powers of the top management and, on the human resource
side, check nepotism and favouritism. Rule 25 sanctions contravention of
the Corporate Governance Rules. On the touchstone of Javed Iqbal’s case,
supra, Rules 5 & 12, ibid, are mandatory.

22. According to Mr. Bajwa, NESPAK has dispensed with the

services of the Petitioners under a comprehensive plan. A large number of
employees have been sent packing and advertisement has been placed in
the news dailies dated 26.1.2022 and 20.3.2022 (copies provided to the
Court) inviting applications for fresh appointments some of which are
against the posts held by the Petitioners. Albeit Mr. Nasim has refuted this
suggestion in the strongest possible words, the fact is that there is no
policy under which all this is being done. The Corporate Governance
Rules contemplate that there should be a well-defined mechanism for all
such exercises.

23. The matter does not end here. The Impugned Termination
Letters are cyclostyled and inexplicit. For facility of reference the
substantive part of the one issued to Petitioner Muhammad Tahir Nawaz
Cheema is reproduced below:

“You were appointed through letter No.2679/25/KI/9788E/33040 dated

June 01, 2019, however, your services are no more required and as such
in terms of Sr. No. 11 of terms and conditions of your appointment
letter, your services are hereby dispensed with immediate effect,
however, in terms of Sr. No.11 of your appointment letter’s cheque of
Rs.407,024/- (Four Lac Seven Thousand Twenty Four Only) as
payment of three (03) months’ pay in lieu of three months’ notice is
attached.”

24. The courts disapprove of the notices which merely intimate

the employee/worker that his services are no more required because they
cannot justify his termination. Reliance is placed on Farooq Ahmed v.
Delta Shipping (Pvt.) Ltd. (2006 PLC 102); Ghulam Rasool Tahir v.
IVTH Sindh Labour Court, Karachi through Presiding Officer and
another (2007 PLC 83); and M.D. Escorts Pakistan Ltd. v. Munawar
Khaliq (2009 PLC 50). Mr. Nasim attempted to distinguish these
authorities on the ground that they pertain to labour laws but, in my
Writ Petition No. 5801/2022
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opinion, the scope of the legal principle expounded therein is not

restricted. In Faisal Sultan v. E.D.O. (Education) and others
[2011 PLC (C.S.) 419], a case relating to Secondary School Educators,
Syed Mansoor Ali Shah, J. of this Court held that the Executive District
Officer has a statutory duty under section 24A of the General Clauses Act,
1897, to give reasons. He added: “It ensures transparency and
accountability of public institutions and makes them stronger …
Unreasoned orders generate corruption, weaken institutions and slowly
eat into the foundations of a healthy democracy.”

25. There are also issues with the termination clause in the
Petitioners’ appointment letters which NESPAK has invoked for the
impugned action. The courts have held that the public sector employments
cannot be snapped with one stroke of pen as it offends various provisions
of the Constitution, particularly Article 4 (right to be dealt with in
accordance with law). In Faisal Sultan v. E.D.O. (Education) and others
[2011 PLC (C.S) 419] this Court declared them against public policy.
Relevant excerpt is reproduced below:

“The underlined portion above allows the Local Government to

terminate without assigning reason (for brevity the ‘No Reason
Clause’). This does not stand the test of fundamental rights, reason,
logic, ethics or good governance. While the whole world is moving
towards accountability and transparency, the above unfettered and
unchecked power can be a recipe for corruption, mismanagement,
nepotism and jobbery. Foundations of good governance are based on
reasons, accessibility, accountability, transparency, participation,
consensus, inclusiveness, efficiency, ethics and responsiveness. The
‘No Reasons Clause’ ex facie lacks the requirement of fairness and
procedural due process thereby offending Article 4 of the Constitution.
The said Clause is facially and ex facie discriminatory besides being
liable to be used in a discriminating manner thereby violating Article
25 of the Constitution.”

The Court further held:

“The ‘No Reason Clause’ is a breeding ground for nepotism and cannot
be allowed. Clause 8 of the termination clause to the extent where the
termination can be without assigning any reason is struck down as
opposed to public policy, logic, good governance, duty of fairness,
procedural due process and is facially discriminatory under Articles 4
and 25 of the Constitution. The Provincial and Local Governments
shall bear this in mind before drafting employment contracts.”

26. In Muhammad Ashraf Tiwana and others v. Pakistan and

others (2013 SCMR 1159) the Hon’ble Supreme Court declared such
Writ Petition No. 5801/2022
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‘No Reason Clause’ in the non-statutory rules of the SECP as ultra vires
the Constitution. It held:

“It must be stated that in a civilized dispensation which is rule-based

and is aimed at good governance, such whimsicality cannot be
countenanced. Such autocratic practices may be in consonance with the
legacy of our colonial past wherein the prevalent monarchical
disposition subjected senior State functionaries, even judges, to holding
office at the monarch’s pleasure. But, as we noted in Muhammad
Yasin’s case (PLD 2012 SC 132), our law has come a long way from
those days. It does not allow for dismissal of ‘public servants’ in such
an imperious and arbitrary manner. There is another important reason
why this cannot be done. We have repeatedly held that all functionaries
of the State, be they Civil Servants or senior echelons of
corporate/statutory bodies such as SECP are above all, fiduciaries of
the people. As such they can only exercise their powers in good faith in
the public interest and not on the basis of personal likes or dislikes or
on the basis of whims and fancies. Thus, the power to terminate implies
within it that it is not the power of a despot, tyrant, seth or wadera, but
the power of a trustee and fiduciary in the service of the people.”

The above case was citied with approval in Pakistan

Defence Officers’ Housing Authority v. Mrs. Itrat Sajjad Khan and
others (2017 SCMR 2010).

27. NESPAK has sent the Petitioners home under a plan which
has neither been prepared nor approved in accordance with the Corporate
Governance Rules. It lacks transparency and fairness and completely
disregards the principle of procedural due process. Even the Impugned
Termination Letters do not meet the standards of good governance
developed over the years in respect of public sector employments. Hence,
the company’s action against the Petitioners cannot be approved.

28. The rights of the Petitioners must be balanced with the

interests of the State. Public institutions should not be allowed to become
a breeding ground for parasites. They should have the freedom to manage
their affairs in an appropriate manner so that they may deliver and come
up to expectations of the nation. If NESPAK needs any restructuring or
new policies to improve its working, including those relating to human
resource, it must got ahead subject to the condition that it complies with
the Corporate Governance Rules and ensures transparency and non-
discrimination.
 Writ Petition No. 5801/2022
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Disposition

29. Writ Petition No. 5801/2022 and those mentioned in the

Schedule hereto are accepted and the Impugned Termination Letters are
set aside subject to the observations made in the preceding paragraph.

(Tariq Saleem Sheikh)

Judge
Naeem

Approved for reporting

Judge
Writ Petition No. 5801/2022
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SCHEDULE

Sr. No. W.P. No. Title Counsel

Mr. Shahid Anwar Bajwa, for the Petitioner.

Naveed Anwar Syed Muhammad Haider Kazmi, Assistant

1 6511/2022 v. Attorney General for Respondent No.1.
Federation of Pakistan etc. Ch. Waseem Ismail, Advocate, for
Respondents No.2 & 3.
M/s Kh. Mohsin Abbas, Ijaz Ahmad Awan,
Adnan Qamar Malik and Sultan Ali Awan,
Advocates, for the Petitioners.
Qamar Fareed etc.
2 7045/2022 v. Syed Muhammad Haider Kazmi, Assistant
Federation of Pakistan etc. Attorney General for Respondents No.1 & 2.
Hafiz Tariq Nasim, Advocate, for
Respondents No.3 to 5.
Mr. Akhtar Rasool Joiya, Advocate, for the
Petitioner.
Syeda Samar Kazmi Syed Muhammad Haider Kazmi, Assistant
3 7372/2022 v. Attorney General for Respondents No.1 & 6.
Federation of Pakistan etc.
Mr. Manzoor Hussain Butt, Advocate, for
Respondents No.2 to 5.
Mr. Rustam Nawab Lak, Advocate, for the
Petitioner.
Hina Habib-ur-Rehman
Syed Muhammad Haider Kazmi, Assistant
4 7717/2022 v.
Attorney General for Respondents No.1 & 2.
Federation of Pakistan etc.
Hafiz Tariq Nasim, Advocate, for
Respondents No.3 to 5.
Ch. Amin Rehmat, Advocate, for the
Petitioner.
Hassan Iqbal
Syed Muhammad Haider Kazmi, Assistant
5 8942/2022 v.
Attorney General for Respondents No.1 & 2.
Federation of Pakistan etc.
Mr. Zubda-tul-Hussain, Advocate, for
Respondents No.3 to 6.
Kh. Mohsin Abbas, Advocate, for the
Petitioner.
Mazhar Hussain Jami
Syed Muhammad Haider Kazmi, Assistant
6 9569/2022 v.
Attorney General for Respondents No.1 & 2.
Federation of Pakistan etc.
Hafiz Tariq Nasim, Advocate, for
Respondents No.3 to 5.
M/s Kh. Mohsin Abbas, Ijaz Ahmad Awan,
Adnan Qamar Malik and Sultan Ali Awan,
Advocates, for the Petitioner.
Muhammad Javed Iqbal
7 10818/2022 v. Syed Muhammad Haider Kazmi, Assistant
Federation of Pakistan etc. Attorney General for Respondents No.1 & 2.
Mr. Zubda-tul-Hussain, Advocate, for
Respondents No.3 to 5.
Mr. Muhammad Mubashir Aslam Zar,
Advocate, for the Petitioner.
Rana Natasha Shoaib Awan
Syed Muhammad Haider Kazmi, Assistant
8 11130/2022 v.
Attorney General for Respondents No.1 & 2.
Federation of Pakistan etc.
Hafiz Tariq Nasim, Advocate, for
Respondents No.3 to 5.