IHC to take up petition challenging chief commissioner’s appointment as CDA chief today

ISLAMABAD-The Islamabad High Court (IHC) will Monday (today) take up a petition challenging the appointment of Chief Commissioner Islamabad Capital Territory (ICT) as Chairman Capital Development Authority (CDA).

A single bench of IHC comprising Justice Miangul Hassan Aurangzeb will conduct hearing of the case filed by Riaz Hanif Rahi Advocate. In his petition, he cited Federation of Pakistan through Secretary Ministry of Interior, Secretary Cabinet Division, Secretary Establishment Division, Chairman CDA and Capt (Retd) Noor-ul-Amin Mengal as respondents. 

The petitioner stated that Mengal, respondent no. 5 is a retired army officer, who has been appointed as Chief Commissioner ICT vide notification dated 23.01.2023 on the basis of which he has been appointed as Chairman CDA vide notification dated 24.1.2023. 

He added that the impugned notification has been issued under section 6(2) of CDA Ordinance 1960 which carries different meanings and Chief Commissioner as Ex-Officio Member has not been recognized to be appointed as the Chairman of the Board. 

Rahi contended that ex-officio member cannot be appointed as the Chairman of the Board as concluded in the last lines of para 26 of the judgment in Farrukh Nawaz Bhatti VS Federal Government, reported as 2018 CLC 1275, therefore, the notification dated 24.01.2023 is in fact contemptuous in nature and even its inclusion in summary dated 10.2.2021 is offensive to the judgment. He also said that the term Elite Capture used in the above judgment is an abuse of the Constitution, especially its Article 3. 

He also contended that impugned  notification dated 24.1.2023 carry reference of Sec.6(2)of the CDA ordinance but respondent no. 5 has not remained member at no material stage and mischievously created position as ex-officio member and is not mentioned in the notification dated 3.3.2021 which shows different provisions i.e. Sec.6(1),(3) of the Ordinance. 

He argued that even if notification dated 3.3.2021 would have been issued in legal manner within the requirements of Mustafa Impex Case i.e. PLD 2016 SC 808, even then it would be the executive order which cannot supersede the statute and can only be amended through proper legal procedure. 

The petitioner also argued that under the analogy of Sec.6(2) of the ordinance ,if the Chairman is to be appointed from its members, then; one of the office of member would become vacant but under prevailing situation, the position of ex-officio is in fact addition as a member who is also enjoying office of Chairman. 

He further said that office of Chief Commissioner is Administrative Cadre as Civil Servant while Chairman CDA is Public Servant within the meaning of Sec. 39 of the ordinance and Sec. 8(e) of the ordinance prohibits direct conflict of interest as Chief Commissioner is the appellate authority if someone is aggrieved by the acquisition proceedings of CDA. 

He added that ex-officio position itself confers no right to retain dual office. He can be the watchman only if powers as ex-officio may be defined somewhere while the conduct of respondent no. 5 being in the administrative service of Pakistan is being regulated by the Government Service (Conduct) Rules 1964 who cannot perform any other function other than his official duties. If official duty is interrupted due to some trade etc. “then it is an offense under section 168 PPC.” 

Rahi adopted that governance with dual charge is not recognized by any law but otherwise amount to crime as public offices are trust and part time duty is its breach and misconduct. Both the notifications i.e. 3.3.2021 24.1.2023 have been issued with malafide intention and denote the concept of bad governance. 

Therefore, he requested the court that the impugned notification dated 24.01.2023 may please be declared as without lawful authority and of no legal effect and notification dated 3.3.2021 may further be declared as malafide, illegal and provide no basis for the appointment of Chief Commissioner as Chairman CDA.

He also prayed to the court that report from respondent no.1 may please be requisitioned with regard to dual position in different offices within the jurisdiction of this court in order to declare it as bad governance and direct the Federal Government to appoint senior independent  officer of BPS-22 as Chairman CDA on a regular basis as preferably by promotion.

Article source: https://www.nation.com.pk/30-Jan-2023/ihc-to-take-up-petition-challenging-chief-commissioner-s-appointment-as-cda-chief-today