ISF writ petition in IHC

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

W.P. No.__________/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973

INDEX

Sr.No Description Annexure Page

1 Writ Petition along with Affidavit

-

2 Impugned notification dated 28.11.12

3 Letter of Respondent No.3 dated 26.11.12

4 Copy of HEC Ordinance 2002

5 Copy of HEC (Recruitment) Rules 2009

6 Application for interim relief along with affidavit

7 Exemption petition

4 Vakalatnama

Petitioner

Through

FARRUKH DALL

Advocate High Court

Federal Service Tribunal

DALL Advocates & Legal Consultants

310-Royal Centre Blue area, Islamabad.

www.dalladvocates.com

mobile; 03006007663

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

W.P. No.______/2012

1. Farrukh Habib Central President Insaf Students Federation, Pakistan Tehreek-e-Insaf, Central Secretariat Pakistan Tehreek-e-Insaf, house no.2, street no.84 G-6/4, Islamabad.

2. Ch Arsalan Hafeez son of ch Muhammad Hafeez President Insaf Students Federatuion Islamabad, Central Secretariat Pakistan Tehreek-e-Insaf, house no.2, street no.84 G-6/4, Islamabad.

…Petitioners

Versus

1. Federation of Pakistan, Islamabad through Secretary

Establishment Division, Islamabad. 2. Secretary Cabinet Division, Pak Secretariat, Islamabad.

3. Principal Secretary to Prime Minister of Pakistan, Prime

Minister Secretariat Islamabad.

4. Dr.Javed Lughari Chairman Higher Education Commission

Pakistan, H-9, Islamabad. 5. Major (Retd) Qamar Zaman presently holding the post of

Executive Director, Higher Education Commission Pakistan, H-9, Islamabad.

6. Dr Atta ur Rehman former Chairman/founder of Higher Education Commission, Pakistan Academy of Sciences Constitution Avenue, Islamabad.

…Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973

Respectfully Sheweth:

That the address of the parties for the service of summons are true

and correct as mentioned in the head note of the petition.

That the petitioner submits that the instant writ petition involves

the issue of enforcement of fundamental rights of public at large as

the action impugned herein adversely affect the functioning of a

very important state operatus with regulatory mechanism directly

touching the public interest and the service to be provided by the

state functionaries to the public at large. The petitioner assails

hereunder the malfunctioning of the respondents in general and

the respondent No.5 in particular.

1. That the petitioners are representatives of one the largest

student organization in the country and are devoted and

committed to protect the rights of Students and also to

ensure supremacy of the Constitution and Rule of Law in the

Country.

2. That the Higher Education Commission (hereinafter called as

HEC) was established under the provisions of Higher

Education Commission Ordinance 2002 (hereinafter called

as he “Ordinance”) (Annex C) for the purposes of Quality

assurance, degree recognition, development of new

institutions and uplift of existing institutions in Pakistan.

The objects of the establishment of the Authority under

section 10 of the said Ordinance are more particularly

provided under the said Ordinance.

3. That the Ordinance was promulgated by the then President

of Pakistan and validated under Article 270AA of the

Constitution of Islamic republic of Pakistan which was

inserted by virtue of the 17th amendment Act 2003.

4. That the HEC is a statutory body created as an autonomous

federal regulatory institution and enjoys complete

administrative and financial autonomy in the exercise of its

powers and functions annunciated in the said ordinance.

5. That there has been much praise of the higher education

reforms made by HEC. The World Bank, USAID and the

British Council published comprehensive reports on the

Higher education sector applauding it and calling it “a silent

revolution”. Pakistan has also been given four prestigious

international awards for the revolutionary changes and

remarkable transformation of the higher education sector.

Prof. wolfgang voelter (Tubingen University, Germany) in his

article ‘the Golden age’ writes “a miracle happened. The

scenario of education, science and technology in Pakistan

changed dramatically as never before in the history of

Pakistan”, the Chairperson of the Senate Standing

committee on Education recently announced it as ‘Pakistan’s

golden period in higher education’. One of its achievements

is development of one of the best digital libraries in the

region. It is also pertinent to mention here that almost 4,000

scholars have participated in PhD in Pakistan and more than

600 students have studied in foreign PhD programs Under

the auspicious of HEC. The functions, duties and

obligations of HEC towards the state and public at large

make it focal Authority with vital role of provision of services

to the masses in the education sector and the facilities there-

under. Although it facilitates the development of Higher

Educational system in Pakistan and to upgrade Universities

in Pakistan, It has to play an important role and services

safeguarding the rights of state as well as the public at large.

Any malfunctioning in its affairs adversely effects the entire

nation and also the guaranteed fundamental rights of the

public at large.

6. That the petitioner seeks indulgence of this Honourable

Court under Article 199 of the Constitution of Islamic

Republic of Pakistan 1973 for appropriate direction/orders

against the illegal notification issued by Respondent No.1 by

giving the additional charge of the post of Executive Director

HEC in favor of Respondent No.5 vide order dated

28.11.2012.

7. That the post of Executive Director is of the utmost

importance and is the single most crucial factor that would

determined the functional success of HEC in the tasks it has

been given by law to perform. It is for this reason that the

law clearly provides that he will be responsible for

implementation of all the orders etc. His role is specifically

prescribed in Section 11(2) of the Ordinance as under:

“The Executive Director shall be the head of Secretariat.

The Secretariat shall act as the executing wing of the

commission and shall be responsible for implementation

of all the orders, decisions, directives, and policy of the

commission”.

8. That while performing in an illegal manner, Respondent no.1

through its notification dated 28-11-12 has appointed

Respondent No.5 as Executive Director of HEC (Annex A).

9. That the impugned Notification was passed after the

issuance of a letter dated 26-11-12 by Respondent No.3 to

Respondent No.1, by which it was directed to appoint

Respondent No.5 on the post of Executive Director (MP

Scale) HEC (Annex B).

10. That There were massive violations of rules and governing

Laws of HEC as per Laws Respondent No.1 has no role in the

affairs of HEC, thus has no authority to pass any order

regarding the appointments on MP Scales.

11. That the HEC is a statutory body and has been performing

its functions independent of any government interference for

last ten years. Under the ordinance as well as ‘Higher

Education commission Employees (recruitment) Rules 2009’

(hereinafter called as “Rules” ) (Annex D) it is specified that

the HEC itself is competent as regard to the appointment of

Executive Director.

12. That the process of recruitment in the HEC is controlled by

the provisions of Section 12 of the Ordinance which states in

relevant part as follows;

Recruitment of officers, etc.- (1) The commission

may, from time to time appoint such officers, servants,

consultants and advisors as it may consider necessary

for the efficient performance of its functions on such

terms and conditions as may be prescribed by the

Federal Government.

13. That the recruitment of the Executive Director is specified in

Section 11 of the Ordinance provides as follows:

“Secretariat of Commission. – The commission shall

appoint an Executive Director in the manner prescribed

who unless earlier removed on any of the grounds

specified in sub-section (6) of section 6 shall hold office

for four years and shall be responsible for for the

various activities of the commission”

14. That in section “6” of the Rules, it is mentioned;

“Appointing Authority.- The authorities competent to

make recruitments to the various posts in the basic pay

scales, MP Scales, and to project funded posts, shall be

as follows;--

Sr. Scale Appointing

Authority

1 MP Scales and BPS-

19/equivalent and above

Commission

2 BPS-17 to 18 and

equivalent

Chairperson

3 BPS 11 to 16 and

equivalent

Executive Director

4 BPS 1 to 10 and equivalent Member (O & P)

15. That in section “8” of the Rules, it is mentioned;

“Initial appointment.—initial appointments to the posts

in MP Scales, BPS 19 and above shall be made on the

basis of interview and recommendations by the selection

board after the vacancies have been advertised in the

newspaper”.

16. That since respondent NO.5 was given a charge of post of

Executive Director in violation of Law, Therefore, his

continuation as Executive Director is nothing but an

unwarranted malicious act being perpetuated upon the

entire nation. The said appointment is also completely

against the mandatory provisions of Law.

17. That the impugned notification is arbitrary, illegal, discriminatory,

unlawful, void ab-initio having no legal effect and of colorful

exercise of the powers and based on malafide, is coram non

judice and has no sanctity in the eyes of Law.

18. That the petitioner has no alternate efficacious remedy

except to invoke the constitutional jurisdiction of this

Honorable Court.

PRAYER:

In view of the above mentioned circumstances and facts, it is

humbly prayed that the writ petition may very graciously be

allowed against the respondent No.1 by declaring appointment of

respondent No.5 as Executive Director vide Notification dated

28.11.2012 as illegal against the mandatory provisions of law, ab

initio, without jurisdiction.

Further prayed that respondent No.5 may kindly be directed to

deposit all the remuneration and other fringe benefits

availed/received from the date of his initial appointment in the

government account in the interest of justice, transpierce and fair

play.

Any other relief deemed appropriate under the circumstances of

the case may also be granted.

Petitioner

Through

FARRUKH DALL

Advocate High Court

Federal Service Tribunal

DALL Advocates & Legal Consultants

310-Royal Centre Blue area Islamabad.

www.dalladvocates.com

mobile; 03006007663

CERTIFICATE:

As per information received from the petitioner, it is certified that

instant petition has arisen from violation / non -fulfil lment of

obligation under the law applicable and the Constitution of the

Islamic Republic of Pakistan, 1973 and no alternate remedy is

available. Further certified that subject matter of the petition is

neither sub-judice before this Hon’ble Court nor has been decided

thereby.

Counsel

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

W.P. No._________/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973

AFFIDAVIT

I, Farrukh Habib Central President Insaf Students Federation, Pakistan Tehreek-e-Insaf, Central Secretariat Pakistan Tehreek-e-Insaf, house no.2, street no.84 G-6/4, Islamabad, do hereby solemnly affirm and declare that the contents of the accompanying writ petition are true and correct to the best of my knowledge and belief and nothing has been concealed or misstated therein.

DEPONENT______________

Verified at Islamabad on this ___ day of December 2012 that the

contents of the abovementioned affidavit are true and correct to

the best of my knowledge and belief and nothing has been

concealed or misstated therein.

DEPONENT______________

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

C.M. No_______/2012 W.P. No.______/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION

OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

PETITION U/S 151 CPC INTERIM RELIEF

Respectfully Sheweth:

1- That the Petitioners has filed the above captioned writ

petition before this Honourable Court.

2- That the Petitioners has got a good prima facie arguable

case, and has got every likelihood of success in the same.

3- That the balance of convenience and inconvenience lies in

favour of the Petitioners.

4- That if the temporary injunction as prayed for is not granted

the nation shall suffer an irreparable loss as it would lower

the highest national body.

5- That the HEC is an esteemed institution which has gotten

extra ordinary results in past being an independent body.

Interference and appointment of a bureaucrat on the most

important post is a plot against the autonomy of HEC and to

take over the charge of the commission.

PRAYER

It is therefore, humbly prayed that application may

kindly be accepted the operation of impugned notification

dated 28.11.12 may kindly be suspended and Responded

No.5 may kindly be restrained from working on the post

of Executive Director. It is further prayed that the

respondents may kindly be restrained from taking any

adverse action or doing any other act which is prejudicial

and constitute an invasion over the Autonomy Of the

commission in any manner whatsoever till final decision

of the writ petition.

Petitioner

Through

FARRUKH DALL Advocate High Court

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

C.M. No_______/2012 W.P. No.______/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION

OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

PETITION U/S 151 CPC INTERIM RELIEF

AFFIDAVIT

I, Farrukh Habib Central President Insaf Students Federation,

Pakistan Tehreek-e-Insaf, Central Secretariat Pakistan Tehreek-e-Insaf, house no.2, street no.84 G-6/4, Islamabad,do hereby solemnly affirm and declare that the contents of the accompanying writ petition are true and correct to the best of my knowledge and belief and nothing has been concealed or misstated therein.

DEPONENT______________

Verified at Islamabad on this ___ day of December 2012 that the

contents of the abovementioned affidavit are true and correct to

the best of my knowledge and belief and nothing has been

concealed or misstated therein.

DEPONENT______________

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

C.M. No_________/2012 W.P. No.________/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION

OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

PETITION U/S 151 CPC FOR EXEMPTION OF CERTIFIED COPIES OF THE DOCUMENTS

Respectfully Sheweth:

1. That the petitioner has filed the above titled writ petition

in this Honourable Court.

2. That the petitioner has also filed photo-state copies of

some documents along with the titled writ petition,

certified copies of which are not available to the

petitioner.

3. That certified copies of the aforesaid documents are not

available to the petitioner, therefore, the same may be

exempted to be produced in original or certified

It is, therefore, most humbly prayed that certified or original

copies of the annexed documents may be exempted from

production before this Honorable Court in the interest of

justice.

Petitioner

Through

FARRUKH DALL

Advocate High Court

BEFORE THE ISLAMABAD HIGH COURT, ISLAMABAD

C.M. No_________/2012 W.P. No.________/2012

Farrukh Habib

Versus

Federation of Pakistan etc

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION

OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

PETITION U/S 151 CPC FOR EXEMPTION OF CERTIFIED

COPIES OF THE DOCUMENTS

AFFIDAVIT

I, Farrukh Habib Central President Insaf Students Federation,

Pakistan Tehreek-e-Insaf, Central Secretariat Pakistan Tehreek-e-Insaf, house no.2, street no.84 G-6/4, Islamabad,do hereby solemnly affirm and declare that the contents of the accompanying writ petition are true and correct to the best of my knowledge and belief and nothing has been concealed or misstated therein.

DEPONENT______________

Verified at Islamabad on this ___ day of December 2012 that the

contents of the abovementioned affidavit are true and correct to

the best of my knowledge and belief and nothing has been

concealed or misstated therein.

DEPONENT______________

POWER OF ATTORNEY

IN THE ISLAMABAD HIGH COURT ISLAMABAD

__________________________________________________________

Petitioner

VERSUS

__________________________________________________________ Respondents

KNOW ALL TO WHOM PRESENTS shall come that I/We the undersigned appoint To be the advocate/solicitor for the

_________________ in the above mentioned matter to do all following acts, deeds and things in embassy or any other court of law, of these that is to say. 1. To act, appear and plead in the above mentioned case in this

Court in which the same may be tried or heard in the first instance or in appeal or revision or review or execution or in any other stage of its final decision.

2. To present pleading, appeals, cross objections or petitions for

executions review, revision, withdrawal, compromise or other petitions or affidavits or other documents as shall be deemed necessary or advisable for the prosecution / defence of the said cause at all its stages.

3. To withdraw or compromise the said case or submit to arbitration

any differences or disputes that shall arise touching or in any manner relating to the said case.

4. To employ, authorize any other legal practitioner to assist or exercise the power and authority hereby conferred on the Advocate whenever he may think to do so.

AND I / We hereby agree to ratify whatever the Advocate or his substitute shall do in this behalf AND I/We hereby agree not to hold the Advocate or his substitute responsible for the result of the said case in consequence of his balance from the court when the said case is called up for hearing..

WHEREFOR I/We hereunder set my / our hands to these presents the contents of which have been explained to and understood by me/us.

__________________________ FARRUKH DALL Signature/Thumb Impression of Client Advocate High Court

DALL

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