National Accountability Bureau: Public officials cannot pass illegal order, says court

NAB’s former director general has been restrained from functioning.

LAHORE:

Lahore High Court observed on Thursday that exceptional circumstance did not give a public functionary the power to pass an illegal order.

A division bench headed by Justices Sheikh Ahmad Farooq and Muhammad Qasim Khan held this in its detailed judgment issued in the National Accountability Bureau (NAB) Punjab director general (DG) disqualification case.

The bench, on the petition of Shah Faisal, had restrained Rana Zahid Mehmood from functioning as NAB Punjab DG on May 25 through a short order.

The bench held, “Interestingly, despite conceding the legal position ... that the extension in the contract of the director general could only be granted by the competent authority - the NAB chairman - the NAB deputy chairman has allowed Rana Zahid Mehmood to continue to perform duties temporarily. Apparently (he was allowed to do so) on the basis of exceptional circumstances and compelling administrative reasons. Suffice it to observe that the existence of exceptional circumstances, whatsoever, do not vest any power or authority on a public functionary knowingly to pass an illegal and unauthorized order.”

The bench said the appointment of NAB staff and officers is governed by Section 28 (a) of the NAB Ordinance, which empowers the NAB chairman, or a NAB officer duly authorised by him, to appoint such officers and staff as he may consider necessary for the efficient performance of the functions of NAB.

Similarly, the chairman has been authorised to determine the salaries, allowances and other terms and conditions of service of the officers and staff, with the approval of the president, in view of Section 28(c) of the NAB Ordinance, 1999, the bench added. As far as the mode of appointment of deputy chairman is concerned, according to Section 7 of the NAB Ordinance, 1999, it is made by the president in consultation with the NAB Chairman the bench held.

Likewise, Section 6 (iv) and Section 34 (A) of the ordinance empower the chairman to delegate any of his powers to and authorise the performance of any of his functions by an officer of the NAB as he may deem fit and proper.

The bench said that from the record, it is evident that the chairman on October 15, 2010, delegated powers to the deputy chairman which included service and other matters pertaining to officers up to BS-20.

The bench observed that the deputy chairman did not possess any delegated power to appoint any officer of BS-21, much less extend the tenure of contract of an officer who was initially appointed by the chairman with the approval of the prime minister.

The bench, relying upon a court observation in the Bank of Punjab and others versus Haris Steel case, said that Section 6 of the ordinance permits a deputy chairman to act as chairman only when the chairman is available but is temporarily absent or is temporarily unable to perform the functions of his office. The said provision, the bench added, does not allow a deputy chairman to act as the chairman when the said office is vacant.

The bench held that according to Rule 35 of NAB  Employees Terms and Conditions of Service (TCS), 2002, additional charge of a vacant post can only be given for an initial period not exceeding three months with the specific approval of the chairman. However, the same could be extended for another three months, but not beyond six months, with the approval of the government.

Mehmood, the bench held, was given the additional charge of the Punjab NAB DG on July 22, 2010 and the period of six months had already expired.

The deputy attorney general had submitted a report in the court conceding that Mehmood had no right to act as DG after the expiry of his contract, the bench held.

It said that Mehmood’s contractual appointment as NAB Rawalpindi DG, as well as his additional charge as NAB Punjab DG expired on January 1, 2011, and April 20, 2011, respectively. “The instant civil miscellaneous petition is accordingly, allowed and Mehmood is restrained from performing his duties as in both positions with immediate effect,” the bench concluded in its order.

Published in The Express Tribune, June 3^rd, 2011.