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Saturday, July 09, 2011

NAVEED INAM CHEEMA Vs SECURITIES & EXCHANGE COMMISSION OF PAKISTAN

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Review Petition under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 read with Order XXVI Rule 1 of the Pakistan Supreme Court Rules, 1980 for Review of the Judgement dated 28.04.2008 passed by this August Court in Civil Appeal No.306/2009:

  1. The Petitioner was serving as Deputy Registrar of Companies in the Corporate Law Authority. The Petitioner was appointed through the Federal Public Service Commission and in the FPSC Examination the Petitioner had topped the list. The Petitioner was the senior mist Deputy Registrar.
  2. That under Section 43 of the Securities and Exchange Commission Act, 1997 (the Act), the Corporate Law Authority was dissolved. Section 43(e) of the Act provided that no employee of the Authority shall have any right of lien to appointment to any post in the Commission and Section 43(f) provided that any person referred to clause (e) who is appointed in the Commission shall have the option either to remain a civil servant or to be an employee of the Commission and clause (h) of this Section provided that a person referred to in clause (e) who is not appointed by the Commission shall continue to draw his pay, allowances, privileges or other benefits as he was drawing while holding the post in Authority and unless sooner he is appointed by the Federal Government to another post, the cost of paying salary, allowances and other benefits to such person shall be borne by the Commission.
  3. That the Commission selected the persons of its choice through a pick and choose policy and appointed them as the employees  of the Commission, whereas the Petitioner was not appointed. The service of the Petitioner was declared surplus vide order dated 01.05.2000 and also a corrigendum was issued on 11.05.2000. The Petitioner challenged the letters whereby he was declared surplus through Writ Petition No.17807/2000, which was allowed vide judgement dated 23.01.2001 and the above mentioned letters were declared to have been issued without lawful authority.
  4. That the Commission challenged the judgement dated 23.01.2001 in the Supreme Court through CPLA No.448/2001. this Petition was dismissed vide order dated 27.04.2001 passed by the Honourable Supreme Court of Pakistan. It was held in this judgement that when the impugned letter were issued the Commission was not properly constituted and therefore, the letters dated 01.05.2000 and 11.05.20001 were coram non judice. It was also held that the Petitioner continued to serve the Commission in various capacities and during his service he was nominated for higher education and training and as such an impression was given to him that he has been taken over in employment of the Commission. After serving the Commission for about one and half year, the impugned letters was issued, hence the Petition was dismissed and the leave was refused.
  5. That after the judgement of the Honourable Supreme Court dated 27.04.2001, the Commission issued a letter to the Petitioner on 11.07.2001 stating reasons as to why the Commission was not satisfied to offer the Petitioner appointment as its employee and the Petitioner was asked to submit reply to the said letter and was promised a personal hearing. However, the Petitioner did not appeared before the Committee constituted for deciding about his employment and therefore, vide order dated 01.08.2001, the Petitioner was informed that he cannot be taken into the employment of the Commission. The Petitioner alongwith Muhammad Ashraf Gondal, challenged this order through Writ Petition No.20166/2001 in the Lahore High Court, Lahore and vide judgement dated 09.04.2002 this Writ Petition was dismissed to the extent of the Petitioner but was accepted with respect to Muhammad Ashraf Gondal. The Commission being aggrieved of the judgement in favour of Muhammad Ashraf Gondal filed an ICA in the Lahore High Court. Both the ICAs were heard together and vide judgment dated 13.05.2003, through the consent of all the parties the ICAs were decided and it was directed that the Committee constituted by the Commission shall reconsider the cases of the Petitioner and Muhammad Ashraf Gondal after they filed replies to the reasons given by the Commission.
  6. That in compliance with the order of the High Court in the ICA, the Commission gave a personal hearing to the Petitioner and vide order dated 22.07.2003 held that the Petitioner is not suitable for employment in the Commission and that he will remain available in the surplus pool.
  7. That agains the order of the Commission dated 22.07.2003, the Petitioner along with Muhammad Ashraf Gondal filed Writ Petition No.2927 of 2003 in Lahore High Court,Rawalpindi Bench, Rawalpindi. this Writ Petition was accepted vide judgement dated 22.12.2003 and it was held that the impugned order has been passed in violation and by ignoring the vital observations of the Honouable Supreme Court of Pakistan in its judgement dated 27.04.2001and the Writ Petition is allowed and the impugned order is set aside being without lawful authority.
  8. The aggrieved of the judgment dated27.12.2003, the Commission filed ICA No.11 of 2004 in the Lahore High Court, Rawalpindi Bench, from where it was transferred to the Islamabad High Court, which High Court in the meantime had been established.
  9. That the ICA No.11 of 2004 came up for hearing in the Islamabad High Court on 22.12.2008, which was dismissed vide judgment dated 22.12.2008.
  10. That against the judgment dated 22.12.2008 the Commission filed Petition for leave to appeal and leave was granted and the petition was converted into Civil Appeal No.306 of 2009. Similarly another appeal on the same subject Appeal No.305 of 2009 was clubbed with Appeal No.306 of 2009 and both the appeals were accepted vide consolidated judgment 28.04.2010 passed by this August Court.
  11. That the Petitioner seeks review of the judgment dated 28.04.2010, inter alia on the grounds.
Grounds:
  • That it may graciously be appreciated that an error has occurred in the impugned judgment by holding that the Writ Petition file by the Petitioner was not maintainable in view of Article 212(3) of the Constitution of Islamic Republic of Pakistan, because the Petitioner is a civil servant. It is respectfully submitted that the case of the Petitioner for retention in the service of the Commission did not relate to his terms and conditions of service as a civil servant and therefore, the Petitioner could not have approached the Federal Service Tribunal for the redress of his grievance. In fact it was held in the judgment dated 09.04.2002 passed by his Lordship of Moulvi Anwar ul Haq in Writ Petition No.20166/2001 that bar of Article 212(3) of the Constitution, the matter does not pertain to any of the terms and conditions of service stated in the Servant Act, 1973 read with provision of Service Tribunal Act, 1973. The Petitioner could not have approached the Service Tribunal for redress of his grievance, also for the reason that the Securities and Exchange Commission of Pakistan does not fall within the jurisdiction of Federal Service Tribunal.
  • That in the impugned judgment it has also been observed by this August Court that the learned Division Bench of Islamabad High Court, while passing the impugned order for dismissal of ICAs has rightly observed that even the Writ Petitions file the Respondent No.1 before the Lahore High Court were not maintainable in terms of Section 34 of the Act, which observation is correct and thus without exception. It is most humbly submitted that this observation of the learned High Court relates to what is known as "alternate remedy". It has been held by all the superior courts that High Court will not entertain a constitutional jurisdiction of High Court but is a rule by which court regulates its jurisdiction. The existence of the remedy under Section 34 of the Act was definitely not adequate and prompt and therefore, it was not a bar to filing of the Writ Petition under Article 199 of the Constitution. Hence an error has occurred in the impugned judgment which needs to be reviewed. it may also kindly be appreciated that the matter went up before the Honourable Lahore High Court and the question was never raised that the Writ Petitions are not maintainable. Also the matter went up to this August Court in a Petition for leave to appeal and the objection was never raised that the Writ Petition is not maintainable. Similarly, the case went up to the Lahore High Court in Intra Court Appeals, which were decided with consent of the parties, but the question was never raised that the Writ by the Petitioner was not maintainable. Hence, at this very late stage if it is held that the Writ was not maintainable, the Petitioner would be left without any remedy even though in the impugned judgment this August Court has held that it is open to the Petitioner to follow any other remedy.
  • It is therefore respectfully prayed that this August Court may be pleased to accept this Review Petition and the judgment dated 28.04.2010 by this August Court in Civil Appeal No.306/2009 may graciously be Reviews and set aside and the judgment dated 22.12.2003 passed by the Lahore High Court may be restored.
  • Any other relief deemed fit and proper in the circumstances of this case may also be awarded to the Petitioner.
The above said extracts of petition filed by Mr. Naveed Inam Cheema and Muhammad Ashfraf Gonda. The below is extract from the judgment made by Honourable Justice Anwar Zaheer Jamali in Civil Appeal No.305 & 306 of 2009 dated 28.04.2010 and it can be easily seen that Abdul Rehman Qureshi plays its malafied role:

5. Impugned order dated 30th July, 2001 was passed by four Commissioners namely, Tariq Iqbal Khan, Abdul Rehman Qureshi, N.M Shahani, M. Zafar-ul-Haq Hijazi and not by commission, as contended by the learned counsel for the appellant.

Abdul Rehman Qureshi foxfully used section 43 for himself to be remain in SECP as well as the same section as axe had been used to fire his opponents.

Since, it has been established fact that the said Abdul Rehman Qureshi is a relative of former Establishment Eecretary Ismail Qureshi, Abdul Rehman Qureshi has always been grabbed powers of his choices. The journey of Abdul Rehman Qureshi starts from Assistant Registrar of Companies to Acting Chairman of erstwhile CLA, Sectary of Policy Board of SECP and Legal Advisor to SECP (whereas he is not a professional lawyer as required by the Securities and Exchange Commission of Pakistan, Act, 1997).

It has been established fact that apart of his kinship with Ex-Secretary Establishment, Government of Pakistan, he has also been working as a watchdog to the interests of federal and provincial bureaucracy who, covertly, are running their business through private limited companies. It is believed that Abdul Rehman Qureshi has strong networking neighborhood to protect himself by using black mailing tactics.

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