• The petitioners argued that extensions of the chairman’s tenure were not supported by the relevant Act and the rules.
• They submitted that the petition is maintainable as it is in the nature of quo warranto.
• The court observed that the quo warranto arguments raised by the petitioners’ counsel were misconceived.

KARACHI: The Sindh High Court has dismissed a petition filed by the Sindh Bar Council that challenged the qualification criteria for the appointment of chairman of the National Industrial Relations Commission (NIRC).

The SBC and other had assailed the vires of Rule 3 (1) of the Chairman and Members (Qualifications) Rules, 2016, setting out the qualification for appointment of a person as the chairman of the NIRC as well as the notification issued by the federal government regarding the appointment of incumbent chairman.

The petitioners argued that extensions of the chairman’s tenure were not supported by the relevant Act and the rules.

They said that in terms of articles 177 and 193 of the constitution, practising advocates with relevant experience are qualified to be appointed as judges of the Supreme Court of Pakistan and the high courts; however, the qualification in terms of Rule 3(1) has been tailor-made so as to limit eligibility to the retired judges of the Supreme Court, thus the qualification is unreasonably restrictive, exclusionary and discriminatory; hence, it violates Article 25 of the constitution.

They submitted that appointments in terms of Rule 3(1) and the extension of such appointments is also said to violate the National Judicial Policy (NJP), with it being contended that the same prohibits retired judges from accepting any appointments except those allowed by statute, whereas the act itself does not provide for the appointment of any judge and it is only in rules that such provision has been made; therefore, this extension is against the NJP as well.

They submitted that the petition is maintainable as it is in the nature of quo warranto; therefore, there is no requirement that the same be instituted by or on behalf of an aggrieved person.

A division bench, comprising Chief Justice Ahmed Ali M Sheikh and Justice Yousuf Ali Sayeed, after perusal of the petition, observed that the petitioners conceded that the appointment of the incumbent chairman took place in accordance with Rule 3 (1), and the real focus of their challenge lies against the extensions granted to him.

The court observed that the quo warranto arguments raised by the petitioners’ counsel were misconceived, as the incumbent chairman’s appointment is in accordance with Rule 3(1), as it stands, and the petitioners cannot seek to supplant that existing qualification so as to then test the appointment with a yardstick that they consider to be better suited.

The judges observed that courts do not perceive Rule 3(1) as giving rise to a violation of Article 25 of the constitution or of the Act, and even if, for the sake of argument, the scope thereof is considered to be restricted and a more expansive qualification criteria are regarded as desirable, that is a matter to be considered by the competent authority and does not of itself affect the vires of the rule.

The court further observed that neither such alleged defect nor the setting aside of the rule on that basis would even otherwise constitute a ground for the impugned notification to be struck down so as to displace the incumbent chairman.

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The Sindh High Court in view of the foregoing reasons observed that it does not see any force in the petition and dismissed the same in limine.