ORDER SHEET
IN THE HIGH COURT OF SINDH, HYDERABAD CIRCUIT
C.P. Nos.D-715 & 2094 OF 2011
DATE ORDER WITH SIGNATURE OF JUDGE
Dates of Hearing: 25.01 and 01.02.2012
Mr. Syed M. Saulat Rizvi, Advocate for Petitioner in C.P. 715/2001
Mr. Wali Muhammad Khoso, Advocate for Petitioner in C.P. 2094/2011
Barrister Zamir Ghumro, Advocate for SIDA (in both petitions) and Respondent Nos. 3 to 5 in C.P. 2094/2011 a/w Mr. Khurram Aziz Shaikh, Secretary, SIDA
Mr. M. Suleman Unnar, Advocate for Respondent No.6 in C.P. 2094/2011
Mr. Allah Bachayo Soomro, Addl. A.G.
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Munib Akhtar, J.: This is a case of first impression, requiring consideration and interpretation of the Sindh Water Management Ordinance, 2002 (“2002 Ordinance”). The 2002 Ordinance and its precedent legislation, the Sindh Irrigation and Drainage Authority Act, 1997 (“1997 Act”), represent the first major legislative attempt in Sindh to systematically modernize the regulation and management of water resources and the irrigation system of the Province, from the macro-level down to the actual users who draw irrigation water from watercourses. Previously, the principal law in the field was the Sindh Irrigation Act, 1879 (“1879 Act”, which continues to remain on the statute book). The 1997 Act was the first effort in this regard, but was repealed and replaced within a few years by the 2002 Ordinance. The latter contains a far more elaborately structured mechanism for water resource management. This is attested not merely by its length (which, at 110 sections, is three times that of the 1997 Act) but also by the substantive provisions thereof. One important point to keep in mind is that despite a certain surface similarity, the legal regime and statutory framework created by the 2002 Ordinance is quite different from what had been set up under the 1997 Act. For example, although in many instances the two statutes use the same names to label the various entities and bodies respectively created by them for water and irrigation system management, the legal nature thereof is often radically different.
2. The actual point in issue in these two petitions can be stated briefly and rather narrowly. On the face of it, the petitioners appear simply to challenge the legality of the appointment of the respondent Nos. 3 to 5 in CP 2094/2011 (one of whom is also respondent No. 6 in CP 715/2011) as directors of the various area water boards created by the 2002 Ordinance. (For convenience, these respondents are herein after referred to as the “impugned respondents”.) However, for reasons that will presently become apparent, in order to properly address this issue, it will be necessary to examine the statutory framework in a broader perspective. The 2002 Ordinance has to be examined in some detail, and a useful aid to this analysis will be a comparison of its provisions with the position that had obtained under the 1997 Act.
3. Before proceeding further, we may note that since a number of sections of both the 2002 Ordinance and the 1997 Act will be referred to, it has been found convenient to reproduce the relevant provisions in one place and in an appendix to the judgment, rather than in the body hereof. Furthermore, capitalized terms and expressions used herein, but not defined, have the same meaning as in the 2002 Ordinance or the 1997 Act, as the case may be. Some terms and expressions have been defined in both statutes; any such capitalized term or expression used herein has the meaning given to it, and is used in the same sense as, in the 2002 Ordinance, unless otherwise specified.
4. Learned counsel for the petitioners submitted that the petitioners were officers in the Irrigation Department of the Government of Sindh and had been appointed as the director AWB Nara Canal and director AWB Left Bank Canal respectively. They had been so appointed by the Government and had been serving in those posts till 18.4.2011 when they were replaced by means of identical notifications issued under the hand of the Chief Secretary to the Government by two of the impugned respondents (being the respondent Nos.3 and 4 respectively in C.P. No.D-2094 of 2011). The third impugned respondent (the Respondent No.5 in the aforesaid petition) was also similarly appointed as director AWB Ghotki at the same time. The notifications stated that the impugned respondents had been appointed as directors of the aforesaid AWBs with the approval of the Chief Minister. Learned counsel for the petitioners submitted that these appointments were contrary to the 2002 Ordinance which laid down the manner in which, and the body by whom, directors of AWBs were to be appointed. Explaining the position, learned counsel submitted that the three AWBs were undergoing development to improve the efficiency and effectiveness of irrigation water distribution and ensure reliability, equity and user satisfaction under a program known as the Sindh Water Sector Improvement Project Phase-1 (hereinafter referred to as “WSIP-1”). This exercise was being funded in part by the World Bank (through its associated entity, the International Development Association or IDA). The Food and Agricultural Organization, a body of the United Nations (hereinafter referred to as “FAO”) was also involved in the program. Acting under the auspices of FAO, advertisements had been placed by SIDA in the newspapers for the appointment of directors of the AWBs concerned, and it was in completion of this recruitment exercise that the impugned respondents were ultimately notified on 18.4.2011. Learned counsel submitted that this entire exercise was contrary to law and therefore the removal of the petitioners from the posts of directors (and their substitution by the impugned respondents) was liable to be set aside. The petitioners were entitled to be restored to the positions of director from which they had been removed. It was also pointed out by learned counsel that after the impugned notifications of 18.4.2011, the Irrigation Department had issued a letter dated 10.09.2011, which referred to the appointments of the impugned respondents as directors but noted that although they were required to resign from the Irrigation Department before taking up the said posts they had not done so. Learned counsel submitted that this was a further illegality that had been committed and that therefore, the petitioners were entitled to relief as was being sought by them.
5. Learned counsel for SIDA as also learned A.A.G. strongly opposed the petitions and submitted that they were liable to be dismissed. Learned counsel for SIDA referred to various provisions of the 2002 Ordinance in support of his case and these are considered in detail herein below. Explaining the background which led to the appointment of the impugned respondents, learned counsel submitted that the WSIP-1 was proposed in or around April 2007 and ultimately approved when the matter was put up before the Executive Committee of the National Economic Council (ECNEC) on 19.9.2007. The project involved a total cost of Rs.10675 million which included a World Bank loan component of Rs.9162.2 million and it was noted that the Government of Sindh would be responsible for reimbursement of the aforesaid loan. Learned counsel also referred to a project appraisal document that was issued by the World Bank on or about 23.08.2007 with regard to WSIP-1. On or about 09.11.2007 an agreement was entered into between the Government of Pakistan and FAO for the appointment of project consultants to provide various services with regard to WSIP-1. As presently relevant, this agreement committed FAO to deploy a team of consultants as project management consultants/procurement agents (referred to in the agreement (and herein after) as “PMCA”). Learned counsel for SIDA drew attention to the relevant clauses of the aforesaid agreement which described the scope of work of the PMCA and submitted that the work to be performed by the latter included, inter alia, establishing appropriate terms of reference for the recruitment of directors of the three AWBs concerned (i.e., Nara Canal, Left Bank Canal and Ghotki). He submitted that under the terms of reference settled by the PMCA, the posts of directors for the three AWBs were ultimately advertised on or about 12.06.2009 in the press. These advertisements gave a detailed description of the job of director and the terms of reference established a detailed, open and transparent method of recruitment. Learned counsel submitted that the method of recruitment required for the candidates to be vetted and short listed and thereafter for the short-listed candidates to be thoroughly interviewed and the final selections made on such basis. He submitted that at all stages the candidates appeared before a high powered team of interviewers, which included members from PMCA, SIDA, AWBs concerned, the Irrigation Department, various other departments of the Government of Sindh and even a nominee of Transparency International Pakistan. It is to be noted that at a meeting held on 21.07.2009, the Chief Minister of Sindh had decided that for the appointment of staff at higher positions in SIDA, his approval would be obtained. Learned counsel submitted that ultimately after the application of the foregoing rigorous selection process, the impugned respondents were selected and were duly approved by the Chief Minister and finally notified on 18.4.2011 by the notifications impugned by means of the present petitions. Learned counsel contended that foregoing procedure was entirely lawful and within the scope and parameters established by the 2002 Ordinance and thus the appointment of the impugned respondents was perfectly regular. However, by way of abundant caution, the names of the impugned respondents were placed before each AWB Board and their appointments were duly ratified by the said Boards. Thus, there could be no grievance or dispute with regard to the appointments of the impugned respondents. Learned counsel also relied on certain case law that is considered below.
6. Before proceeding further, it will be convenient to reproduce the text of one of the impugned notifications of 18.04.2011 (all three being identical in all material respects). The notification for the impugned respondent No. 4 stated as follows:
“With the approval of Chief Minister, Sindh, Mr. Habib Ursani is hereby appointed as Director, Left Bank Canal, AWB, Badin Irrigation Department, with immediate effect and until further orders vice Mr. Muhammad Khan Nizamani transferred and directed to report to Irrigation & Power Department.”
Mr. Nizamani is the petitioner in C.P. D-2094/2011.
7. Learned A.A.G. supported the submissions made by learned counsel for SIDA and further submitted that all the relevant facts were well known to the petitioners at all material times. The petitions had been filed belatedly after the passage of several months from the date of issuance of the impugned notifications on 18.4.2011. Learned counsel submitted that the petitioners had no vested right, or indeed any kind of right at all, to be appointed, or to continue, as directors of the AWBs. If at all the petitioners had been interested in such appointment, they could have participated in the selection process that started from the advertisements placed in the press in 2009 as noted above. Admittedly, they had failed to do so and they could not therefore have any grievance with regard to the appointment of the impugned respondents who were appointed in a regular and lawful manner.
8. We have heard learned counsel as above, examined the record with their assistance and considered the case law that has been relied upon. In order to properly appreciate the relevant provisions of the 2002 Ordinance and the issues involved in the present petitions, it will be appropriate to begin with a brief overview of the 1997 Act. By section 3 thereof a statutory authority known as the Sindh Irrigation and Drainage Authority was established for the purposes of the said Act, therein referred to as the “Authority”. (In order to avoid confusion between this authority and the identically named SIDA established under the 2002 Ordinance, the Authority established under the 1997 Act is hereinafter referred to as the “previous Authority”.) The members of the previous Authority were as given in section 4 and as is clear from a bare perusal thereof, these members were almost entirely and exclusively government officials. The day to day management and affairs of the previous Authority were entrusted to a board of management set up by and under section 7. Section 8 provided for the powers of and duties to be performed by the previous Authority. Chapter VI of the 1997 Act dealt with area water boards. Section 23 empowered the Government to notify area water boards, and sub-section (2) thereof provided that each board was to consist of a chairman and the members as specified therein, which included also the director of the area water board. Section 25 set forth the duties and functions of area water boards but expressly provided that the same were “subject to control and direction of the Authority”. The 1997 Act also provided for the establishment of bodies known as farmers’ organizations and these were dealt with in section 26. Section 29 provided that on the commencement of the 1997 Act, all the assets and liabilities and rights and obligations of the Irrigation Wing of the Irrigation and Power Department stood transferred to the previous Authority. Sub-section (4) of section 29 expressly provided that the Irrigation and Power Department “will be the controlling department of the Authority on behalf of the Government of Sindh”.
9. The 1997 Act was, as noted above, repealed and replaced by the 2002 Ordinance and it is to be noted that section 110 of the latter statute provided for a simple repeal of the former and nothing more. When the relevant provisions of the 2002 Ordinance are compared with those of the 1997 Act, two points immediately stand out. The first is that unlike the 1997 Act, the area water boards (or AWBs) and farmers organizations (or FOs) established under the 2002 Ordinance have a separate legal existence of their own and exist in their own right. SIDA is of course the statutory body created and established by section 3 of the 2002 Ordinance. But section 29, which deals with AWB and section 40 which deals with FOs both provide that these bodies are also to be bodies corporate, i.e., have separate legal existence in and of themselves. The second point is with regard to the independence of these bodies. Whereas section 25 of the 1997 Act had expressly provided that the area water boards constituted in terms thereof (which of course did not have any separate or independent legal existence) were to operate under the control and direction of the previous Authority, section 29 of the 2002 Ordinance expressly imposes a duty on each AWB to “exercise independent judgment in the conduct of its own business”. An identical provision is to be found in section 40 in relation to the FOs. Indeed, such a provision is to be found in relation to SIDA itself in section 4.
10. It is also important to note that the 2002 Ordinance has no equivalent to section 29(4) of the 1997 Act (noted above). Rather, the 2002 Ordinance establishes a Regulatory Authority, and section 74 provides (in subsection (1)) that the main responsibility of this body (which is also a body corporate having its own independent legal existence) is to “ensure compliance with the statutory provisions laid down” in the statute. Subsection (2) of this section also empowers the Regulatory Authority to “promote effective interaction and collaboration between the SIDA, the AWBs, the FOs and their various support bodies” and also, “when invited to do so, [to] arbitrate between them”. Section 68 imposes an express statutory duty on the Regulatory Authority to “exercise independent judgment in the conduct of its business”. It is also pertinent to note that the Regulatory Authority is to be established by the Governor of Sindh (rather than the Government) and he is to nominate its members, but subject to the advice of a nomination panel specified in section 69, whose advice is binding on him. The composition of the nomination panel shows that it is intended to be independent of the Government. Finally, reference may be made to section 100, which provides that until the Regulatory Authority is set up as envisaged, SIDA itself is to perform its functions.
11. The composition of SIDA is also important. While the previous Authority comprised almost exclusively of Government officials, this is not so in the case of SIDA. As section 5 indicates, the members of SIDA fall into three categories—nominated by Government, elected and ex officio. Three members have to be elected in the manner specified in the section. Even with regard to those members who are to be nominated by the Government, three have to be “independent” academicians, and one a “prominent and relevant agriculturist”, preferably a member of a chamber of agriculture operating in Sindh. It is interesting to note that SIDA comprises of 13 members (leaving aside the Managing Director of SIDA, who is its secretary and an advisory member), and of these, the non-government members are seven and thus constitute the majority. A similar position is to be found in section 30 which relates to the composition of an AWB Board. The Board is to comprise of 10 members (leaving aside the Director of the AWB, who is its secretary and an advisory member) all of whom are either elected (three) or co-opted by the elected and nominated members (four). Of the latter four, three must be “independent” academics, and one a “prominent and relevant industrialist”. There are to be two nominated members, of whom one is to be nominated by SIDA and the other (who must be a “prominent and relevant agriculturist”) is to be nominated by the local chamber of agriculture. The ex officio member is to be the Naib Nazim or his nominee. Thus, even more so that SIDA itself, the AWB Board is envisaged as being a completely independent body. It is also pertinent to note that sub-section (3) of section 30 expressly provides that the chairman and members of an AWB Board shall not have any function in SIDA, and there is an equivalent provision regarding the members of SIDA in relation to AWB Boards.
12. In our view, it is clear both from a reading the 2002 Ordinance as a whole as well as the specific provisions noted above (and further referred to below) that the statute places a great deal of emphasis on, and attaches paramount importance, to the independence of action and decision making by the various bodies and entities that have been established in terms thereof. The point is reinforced by establishing these bodies as separate and independent legal entities, and by the repeated and express use of the word “independent” in different places and various contexts throughout the 2002 Ordinance. It is to be noted that this is not merely a matter of a statutory power being granted, but rather a statutory duty being imposed on each entity which, while performing its functions, exercising its powers, discharging its duties and generally acting within the domain established for it by the statute, must act independently. This is not of course to suggest that the various entities are to act in disregard of each other. That is clearly not the intent of the 2002 Ordinance. But, and this is of paramount importance, the subservience of area water boards to the previous Authority, and of the latter to the Government, which was the express rule laid down in the 1997 Act is conspicuously absent in the 2002 Ordinance. Rather, the prevalent rule under the latter statute is the exact opposite, and this is emphasized and reinforced throughout. The various entities under the 2002 Ordinance are to act in a complementary manner and may be likened to interlocking parts of an integrated whole, but each part is required and duty bound by the statute to act in its own right and independently take its own decisions. Indeed, it would not be wrong to conclude that the 2002 Ordinance is intended to be a complete code in itself, which is to operate without any outside interference or control, including (and perhaps especially) that of the Government. As will presently become clear, this is of paramount importance in the appointment of the Directors of the AWBs.
13. The appointment of the Director of an AWB is dealt with in the first instance in clause (a) of subsection (2) of section 29. This provides that the “appointment decision” with regard to an AWB shall contain the “appointment of an acting director until a director has been appointed by the AWB Board”. The expression “appointment decision” has not been defined in the 2002 Ordinance, but it is clear that it relates to and means the constitution of the AWB and establishment of its territorial jurisdiction by the Government in terms of section 28. Thus, when an AWB is constituted, the Government is authorized to appoint an acting Director, who is to hold office till a Director is appointed by the AWB Board itself. Section 34 provides that each AWB shall have a Board of Management which, “subject to the overall control and guidance of the AWB Board”, shall manage the affairs of the AWB. Subsection (2) of this section provides that subsections (2) to (4) of section 12 shall apply, mutatis mutandis, to the Board of Management of an AWB. The latter section establishes a Board of Management for SIDA and provides that SIDA is to have a Board of Management comprising of a Managing Director and a number of General Managers. Subsection (1) of section 34 parallels this provisions since it provides that the Board of Management of an AWB shall be formed by the Director and as many Managers as the AWB may reasonably require for its purposes. Subsections (2) and (3) of section 12 empower SIDA to provide for the qualifications, technical backgrounds and practical experiences required of the Managing Directors and General Managers and to lay down the terms and conditions on which they are to be appointed. By reason of subsection (2) of section 34 therefore, these provisions apply in respect of the Director of an AWB. Thus, the statutory power to appoint the Director of an AWB, to determine and prescribe his qualifications, technical background and practical experience and the terms and conditions of his service vests in an AWB Board. Learned Counsel for SIDA sought to argue that since the Director of an AWB was also an ex officio member of the AWB Board by reason of section 30(1)(k), the said Board was not complete until a Director was appointed and hence the power to appoint the first Director vested in the Government. We find no warrant or provision in the 2002 Ordinance to support any such conclusion, which on the face of it would be rather startling. It is to be noted that in any case the Director of an AWB is only the secretary and an advisory member of the AWB Board. However, more importantly, section 39 makes applicable, mutatis mutandis, a number of sections that apply in relation to SIDA also to an AWB. One of the sections so made applicable is section 9 which relates to meetings of SIDA and this section therefore applies to an AWB Board. Subsection (6) of this section provides for the quorum necessary for a meeting and as is clear from this provision, an AWB Board can easily meet and be quorate even in the absence of the Director of the AWB. Section 109 also provides that no action of any body created by or under the 2002 Ordinance shall be invalid by reason of any vacancy or defect in its membership. It would not therefore be correct to conclude that an AWB Board is incomplete in the absence of the Director of the AWB or cannot act until he is appointed. Furthermore, the interpretation proposed by learned counsel is contrary to section 29(2)(a) already referred to above. This provision clearly limits the power of the Government to appoint an acting Director and leaves no doubt whatsoever that the Director is to be appointed by the AWB Board itself. Finally, the interpretation proposed would negate the independence that is conferred upon and required of each entity or body established under the 2002 Ordinance. This independence, as noted above, is an important and fundamental aspect of the statute and indeed is one of its central and defining concepts.
14. Before proceeding further, it would be pertinent to examine the scope of the Government’s power to appoint an acting Director. Up to what time can this power be exercised? Is this power exhausted when the Government makes the initial “appointment decision” referred to above, i.e., when the AWB is initially constituted in terms of section 28? If so, then it would follow that the Government has only the power to make the initial appointment of an acting Director, and its power stands exhausted as soon as such appointment is made. Or, does the Government have the power to appoint an acting Director from time to time, till such time as the AWB Board concerned itself appoints the Director? Learned counsel for the petitioners submitted that the first interpretation was the correct one. It is to be noted that neither section 29 nor section 34 lay down any time period within which the AWB Board is to exercise its power to appoint the Director. However, it is only reasonable to conclude that this power must be exercised with all reasonable dispatch. Reference in this context must also be made to section 95. This expressly provides, in its subsection (1), that the Government “shall complete appointment of the AWBs in the Province before 30th June 2005”. The 2002 Ordinance was promulgated on 26.10.2002. Keeping these provisions in mind, in our view, the proper interpretation of the power to appoint an acting Director is that the Government had the power to appoint an acting Director from time to time in respect of an AWB but that the said power stood exhausted immediately on whichever of the following two events happened first, namely, the AWB Board concerned itself appointed the Director or the deadline of 30.06.2005 was reached. Once either one of these two events had occurred, the Government no longer had the power to appoint an acting Director. Since it is common ground that the Directors of the three AWB concerned were not appointed till 2011, it follows that the power of the Government to appoint an acting Director stood exhausted on 30.06.2005. It therefore follows that all appointments made after that date (which would include the appointment of the present petitioners) were entirely irregular, if not unlawful. Two points do need to be kept in mind. Firstly, we would note that the acts done by acting Directors appointed as such after 30.06.2005 may be covered by the de facto doctrine and therefore may not be open to legal challenge to that extent. However, this is not a matter in issue in the present petitions, and we do not therefore need to say anything more on this aspect. Secondly, the foregoing observations obviously relate to an AWB constituted prior to 30.06.2005. If an AWB is established after that date, then the Government would have the power, exercisable from time to time, to appoint an acting Director till such time as the AWB Board itself appoints the Director. As already noted, the AWB Board would be bound to act with all reasonable dispatch.
15. To support his contention that the Government did have the legal power and authority to be involved in the appointment of a Director of an AWB, learned counsel for SIDA referred to section 10 (and in particular to clause (e) thereof) as well as sections 19 and 24. In our view, these provisions do not advance the case put forward by learned counsel in any manner whatsoever. Section 10 deals generally with the functions to be performed by SIDA and it is empowered by clause (e) to manage the transition process and to promote the formation, growth and development of AWBs and FOs. Such a general provision cannot obviously override an express provision of the 2002 Ordinance and as noted above, the power to appoint the Director of an AWB vests in the AWB Board pursuant to section 34. In any case, section 10 relates to SIDA and not the Government. Section 19 relates to matters of finance and establishes a fund, to be known as the SIDA Fund. Subsection (2) of this section provides for the proceeds that are to go into this fund. Clause (g) of this subsection expressly relates to foreign assistance and loans obtained from foreign agencies. This section also has no bearing on the issue at hand and in any case relates to SIDA. Furthermore, the section also applies, mutatis mutandis, to an AWB by reason of section 39. Finally, section 24 simply empowers the Government to require SIDA to furnish the returns and reports specified therein and this again has no bearing on the issues at hand.
16. In our view, it is clear that the Government has no statutory power with regard to the appointment of the Director of an AWB or even to be involved in the process of appointment, which is a decision to be taken independently by the AWB Board itself. It follows that the decision taken on 21.07.2009 whereby the Chief Minister was empowered or authorized to approve the appointment of Directors of AWB, or purported to allocate such power to himself, was contrary to law and without any lawful authority or warrant.
17. It is a well settled (and indeed, bedrock) principle of administrative law that if a statute expressly confers a statutory power on a particular body or authority or imposes a statutory duty on the same, then such power must be exercised or duty performed (as the case may) by that very body or authority itself and none other. If the body or authority exercises the statutory power or performs the statutory duty acting at the behest, or on the dictate, of any other body or person, then this is regarded as an abdication of the statutory mandate and any decision taken on such basis is contrary to law and liable to be quashed. It is important to keep in mind that, in law, it matters not that the extraneous element is introduced (i.e., the advice, recommendation, approval, etc. of the person not empowered by the statute is obtained or given) in good faith or for the advancement of any goal or objection howsoever laudable or desirable. The rule of law requires that a statutory power vests in the body or authority where the statute so provides, and likewise, the discharge of the statutory duty is the responsibility of the body or authority to which it is entrusted. That body or authority cannot merely rubberstamp an action taken elsewhere or simply endorse or ratify the decision of someone else.
18. In our view, the foregoing principles apply with even greater force in respect of the 2002 Ordinance. This is so because of the express and great emphasis that the statute places on the independence of action and decision making by the various bodies or authorities created by it. These bodies have their own independent existence and their domains have been elaborately chalked out in the statute. In our view, the repeated and express references to the exercise of “independent judgment” in relation to each of SIDA, AWBs, FOs and the Regulatory Authority show that this is a principle that lies at the heart of the 2002 Ordinance. As we noted in the beginning of this judgment, the 2002 Ordinance represents the first serious attempt in Sindh to modernize the management of water resources. The creation of bodies at all levels, from the macro (SIDA and the Regulatory Authority) to the micro (FOs) and in between (AWBs) and the conferment of independence on these bodies clearly shows that the intent behind the statute is not to essentially replicate the old system (embodied in the 1897 Act) along modern lines. Rather, the 2002 Ordinance makes a decisive break with the past and takes an entirely new and fresh approach, and seeks to genuinely devolve the allocation and management of water resources to different levels and bodies. Anything that appears to undermine (or has the potential or effect of undermining) this central and defining concept of the 2002 Ordinance must be regarded with skepticism and handled with caution to ensure that it accords with the objectives sought to be achieved by the statute. If it is found to be in conflict with the foundational principles and the core concepts underlying the 2002 Ordinance, then it must be discarded howsoever laudable it may appear to be. Furthermore and in any case, anything which is contrary to an express provision of the statute must also be set aside on a simple application of settled principles of statutory interpretation.
19. The entire process whereby the impugned respondents were ultimately appointed to the posts of Directors in the three AWBs concerned must be examined in the context of what has been stated in the paras herein above. No doubt the goals sought to be achieved by the process of recruitment adopted in the present case are laudable. No one can fault, at least on moral grounds, the objective of trying to ensure that appointments are made in an open and transparent manner and after obtaining input from all the stakeholders. However, we sit as a Court of law and our domain is the legal framework established by the statute concerned, which in the present case is the 2002 Ordinance. If the process as adopted is legally faulty and inconsistent with, or unsustainable in light of, the relevant statutory provisions, then it must be set aside as a matter of law. In the present case, we find that the entire recruitment process, from its very inception, remained in the hands of persons and agencies which were either complete strangers to the 2002 Ordinance or were not legally empowered to act in terms thereof. It is quite clear that the entire recruitment exercise was driven by the PCMA established as a result of the agreement between the Government of Pakistan and FAO, acting in collaboration with the Provincial Government as well as SIDA and other agencies. The exercise culminated in the approval granted by the Chief Minster, whereafter the impugned respondents were notified by means of the impugned notifications dated 18.04.2011. In this entire exercise the role of the AWB Boards concerned was either minimal or reduced to a vanishing point. At no point was there any exercise of “independent judgment” by the AWB Boards that is the hallmark of the 2002 Ordinance and an express and mandatory statutory duty imposed by it on all the (legally independent) bodies and authorities created by it. The recruitment exercise was therefore contrary both to the express provisions of the 2002 Ordinance and the policy of, and the objectives that underlie, the statute. At the risk of some repetition we again emphasis that while we are in sympathy with the objectives sought to be achieved by the recruitment exercise designed and implemented in the present case, we cannot and do not find it acceptable on the legal plane. In the end it is the law that must prevail and the law has been completely ignored and upended in the present case. The approval of the Chief Minister and involvement of the Government and a body of consultants (the PMCA) is entirely extraneous to the 2002 Ordinance. The involvement of SIDA is also contrary to the provisions of the statute. On any conceivable legal view therefore the recruitment exercise and resultant appointments are unsustainable and hence must be set aside and quashed.
20. Learned counsel for SIDA placed reliance on the fact that the appointments were subsequently ratified by the AWB Boards, and placed on record the minutes of the relevant meetings. However, a perusal of the said minutes establishes beyond any doubt that the AWB Boards simply rubberstamped what was placed before them and there was not any independent application of mind or the exercise of “independent judgment” as expressly required by the 2002 Ordinance. The real and actual decision had already been taken elsewhere. In other words there was a complete abdication of statutory power and duty by the AWB Boards which is a total negation of the 2002 Ordinance. The purported ratification and the post facto approval granted by the AWB Boards is therefore invalid and without any legal effect.
21. Before proceeding further, we would like to clarify something that may otherwise cause some confusion if it is left unsaid. We do not intend to suggest (since that is not our view) that an AWB Board, while appointing a Director for its AWB, cannot at all take recourse to external assistance or establish or evolve some standard methodology in this regard. Indeed, SIDA itself may, in term of section 25(1), “coordinate the administrative procedures of the AWBs by setting generally applicable standards”. However, as subsection (2) immediately and expressly makes clear, “such standards shall be given only with regard to formal and procedural aspects, but they shall not in any way affect independent judgment of the AWBs”. And this is precisely the problem with the recruitment process adopted in the present case: the complete absence (indeed, negation and denial) of any exercise of “independent judgment” by the AWB Boards. In our view, it would be open to the AWB Boards in the present case to adapt the recruitment exercise and process already undertaken in respect of the appointment of the Directors. For example, they may choose the shortlisted candidates and interview them and then select the Director from amongst them. We would not like to say anything further or in detail, since we do not wish to curtail or channelize in any particular direction the independence of action that is granted to, and demanded from, the AWB Board by the statute. All we want to make clear is that the AWB Boards may, if they so wish, salvage something from the recruitment exercise already undertaken. However, what must happen is that “independent judgment” must be exercised and the record must clearly show that this has happened in whatever it is that the AWB Boards ultimately decide to do.
22. We turn to consider the case law relied upon by learned counsel for SIDA. Learned counsel referred to Hafiz Hamdullah v. Saifaullah Khan and others PLD 2007 SC 52 in support of his contention that the petitioners were not entitled to be reinstated as Directors of the AWBs concerned. In view of the order that we propose to make it is not necessary to consider this decision in detail. Learned counsel relied on an unreported decision of this Court in C.P.No.D-906 of 2010 (Abdul Qayoom and others v. Province of Sindh and others) dated 03.03.2011 handed down at the Sukkur Bench. However, the issues before the Court in that case were different from the ones at hand. Learned counsel also referred to Mujahid Ali Mansoori ad others v. University of Punjab and others 2005 PLC (CS) 694 (LHC; SB). This was a decision in relation to a writ in the nature of quo warranto. Learned counsel sought to argue that in the present case the petitioners seek to be reappointed as Directors and since the impugned respondents already occupy the said posts, their appointments could only be challenged by means of a writ of quo warranto, the necessary ingredients of which are absent. In our view, the objection is misconceived. What we are concerned with here and what has been held by us in the paras herein above is that a gross violation that has occurred of the relevant provisions of the 2002 Ordinance as a result of the relevant provisions not having been complied with. That is the matter that directly falls for determination in the present petitions and has been considered and decided by us in the paras herein above.
23. In view of the foregoing, we hereby dispose off the petitions in the following terms:
a) The decision of 21.07.2009, whereby the Chief Minister was accorded, or accorded to himself, the power to approve appointments to the post of Director AWB is declared to be without lawful authority and quashed and it is declared that neither the Chief Minister nor the Provincial Government has any statutory power or authority under the 2002 Ordinance to be involved in or to undertake or to approve at any stage the appointment of a Director of an AWB.
b) The recruitment exercise undertaken for the appointment of the impugned respondents, and their appointments as Directors of the concerned AWBs, are declared to be without lawful authority and set aside and the impugned notifications of 18.04.2011 are quashed and declared to be without lawful effect.
c) It is declared that the power of the Government to appoint an acting Director of any of the AWBs concerned stood exhausted on 30.06.2005 and therefore the petitioners are not entitled to be appointed or reinstated by the Government to the said posts that they were previously occupying.
d) The concerned AWB Boards are hereby directed and ordered to appoint, expeditiously and in any case within 60 days from today, Directors of their AWBs in accordance with law and in the light of what has been stated herein above.
JUDGE
JUDGE
IN THE HIGH COURT OF SINDH, HYDERABAD CIRCUIT
C.P. Nos.D-715 & 2094 OF 2011
APPENDIX
RELEVANT STATUTORY PROVISIONS
(in material part)
PART I
Sindh Water Management Ordinance, 2002
to provide for the establishment of Water Management in the Province of Sindh
WHEREAS it is expedient to provide for the establishment on long term, sustainable and participatory basis, of public systems for the distribution and delivery of irrigation water, the removal of drainage water and the management of flood waters, which are transparent, accountable, efficient and operating to standards agreed with and acceptable to users and to provide for matters connected therewith or incidental thereto;…
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b) ‘AWB’ means an Area Water Board, established under this Ordinance;
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i) ‘FO’ means a Farmers' Organisation established under this Ordinance;
j) ‘Government’ means the Government of Sindh;
k) 'Managing Director’ means the Managing Director of the SIDA
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m) ‘Regulatory Authority’ means the Regulatory Authority of Irrigation, Drainage and Flood Protection established under this Ordinance;
n) ‘SIDA’ means the Sindh Irrigation and Drainage Authority established under this Ordinance;
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v) ‘Water users’ means a person who enjoys facility of irrigation water from a water course, or canal, for the agricultural land owned or possessed by him, and, in case more than one person jointly own or possess the land, anyone of them authorised by the others to act on their behalf;…
3. Establishment of the SIDA – As soon as may be, after the commencement of this Ordinance, there shall be established an Authority known as the SIDA, provided that the SIDA existing immediately before the commencement of this Ordinance shall continue to function until the SIDA is reconstituted under this Ordinance.
4. Legal status of the SIDA - 1) The SIDA -
a. shall be a body corporate, having perpetual succession and a common seal and shall by the same name, sue and be sued;
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c. shall exercise independent judgement in the conduct of its own business.
2) The jurisdiction of the Authority shall follow hydrological boundaries and be clearly delineated by Government by notification.
3) The registered office of the SIDA shall be based at Hyderabad.
5. Composition of the SIDA
1) The SIDA shall comprise -
i. Members nominated by Government:
a. any person appointed by Government – Chairman;
b. one independent academician with background in irrigation and drainage – Member;
c. one prominent and relevant agriculturist preferably a member of the Chamber of Agriculture operating in Sindh – Member;
d. one independent academician with a background in the environment – Member;
e. one independent academician with background in social issues – Member;
ii. Elected Members
f. one Member to be elected from amongst the FOs receiving water from the Guddu Barrage;
g. one Member to be elected from amongst the FOs receiving water from the Kotri Barrage;
h. three Members to be elected from amongst the FOs receiving water from the Sukkur Barrage; provided that one member shall be a small farmer and one member shall be a farmer on the tail end of a FO which is situated on the tail end of an AWB command area;
iii. Ex Officio
i. Additional Chief Secretary (Development) Planning and Development Department – Member;
j. Secretary, Irrigation and Power Department – Member;
k. Secretary, Agriculture Department – Member;
l. Secretary, Finance Department – Member;
m. Provincial Coordinator, Sindh, of the National Drainage Program; – Member; and
n. Managing Director– Advisory Member and Secretary….
2) The election shall be conducted in accordance with the regulations framed by the SIDA.
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8) The Chairman or a Member shall not hold any political office. If the Chairman or a Member is elected, nominated or appointed to any political office, he shall cease to be Chairman or a Member with immediate effect.
9) The Chairman and the Members shall not hold any office in an AWB.
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9. Meetings of the SIDA -
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6) The quorum for a meeting shall be half of its Members provided that at least two members shall be elected members.
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10. Functions of the SIDA – The functions of the SIDA shall be to -
a. operate and maintain the parts of the irrigation system such as Barrages and outlets assigned to it;
b. operate and maintain the parts of the drainage system assigned to it including spinal drains and inter-AWB drains;
c. carry out river flood protection and maintain the infrastructure in the Province of Sindh;
d. advise Government on any matter strategic or tactical, related to its functions and tasks or to the water management system as a whole e.g. irrigation or drainage contribution rates, drought management and sea water intrusion;
e. manage the transition process, to promote the formation, growth and development of the AWBs and FOs into self-supporting and financially self-sustaining entities within a period of seven to ten years of their establishment; and
f. perform any other function conferred on it under this Ordinance.
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12. Board of Management – 1) Subject to the overall control and guidance of the SIDA, the affairs of the SIDA shall be managed by a Board of Management consisting of the Managing Director and such number of General Managers, as may be appointed by the SIDA on the advice of a committee comprising four members of the SIDA, provided that at least one of them shall be an elected member.
2) The Managing Director and General Managers shall have such qualifications, technical background and practical experience as may be prescribed by the SIDA.
3) The Managing Director and General Managers shall be appointed on such terms and conditions as may be prescribed by the SIDA.
4) The Board of Management may, by general or special order, delegate to the Managing Director or any of the member of the Board, or to any officer of the SIDA, any of its powers under this Ordinance, subject to such conditions or limitations as it may impose.
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19. Finance.- 1) There shall be a fund to be known as the “SIDA Fund” vested in the SIDA.
2) The SIDA Fund shall consist of -
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g) foreign assistance and loans obtained from different foreign agencies with the sanction of, and on such terms and conditions as may be approved by Government in consultation with the Federal Government; and
h) all other sums receivable by the SIDA.
3) The SIDA shall make regulations for the administration of the Fund.
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24. Government Returns.--(1). Government may require the SIDA to submit the following:-
(a) any return, statement, estimate, statistics or other information regarding any matter concerning the SIDA; or
(b) a report on any matter required by Government; or
(c) a copy of any document in the charge of the SIDA required by Government.
(2) The SIDA shall comply with such requisition without delay.
25. Coordination of AWBs by SIDA.--(1) The SIDA may coordinate the administrative procedures of the AWBs by setting generally applicable standards for annual and multi-annual budget plans, business plans, annual reports, accounting systems, staff regulations, IT-standards, information on water distribution to stakeholders, management transfer agreements between AWBs and FOs and the like.
(2) Such standards shall be given only with regard to formal and procedural aspects, but they shall not in any way affect independent judgment of the AWBs.
(3) Such standards shall only be given after consultation of the AWBs, and only after agreement by a majority of the AWBs to these standards.
(4) The SIDA may report non compliance of AWBs with duly set standards to the Regulatory Authority which may decide on action to be taken against the AWB.
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28. Establishment.- Government may constitute AWBs, together with their respective territorial jurisdiction, provided that the AWBs existing immediately before the commencement of this Ordinance shall continue to function until replaced by new AWBs under this Ordinance.
29. Legal status of an AWB - 1) An AWB:
a. shall be a body corporate, having perpetual succession and a common seal and shall by the same name, sue and be sued;
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c. shall exercise independent judgment in the conduct of its own business;
2) The appointment decision shall contain -
a) the appointment of an acting director, until a director has been appointed by the AWB Board; and
b) the base of the AWB.
30. Composition of the AWB Board –
1) The AWB Board shall comprise -
Members nominated:
a. one representative of the SIDA, appointed by the SIDA – Member;
b. one prominent and relevant agriculturist, nominated by a local Chamber of Agriculture situated within the command area of the AWB, provided that. where there are more than one Chamber of Agriculture within an AWB command area, the Chamber which has the largest geographical coverage within the command area of the AWB shall provide the member – Member;
Elected Members:
c. one Member to be elected from among the small farmers being supplied with water by FO situated within the command area of the AWB concerned – Member;
d. one Member to be elected from among the tail enders being supplied with water by FOs situated within the command area of the AWB concerned – Member;
e. in addition, two Members to be elected from among the FOs situated within the command area of the AWB concerned – Members;
Members co-opted by the elected and nominated members:
f. one independent academic with specialist background in irrigation or another related field – Member;
g. one prominent and relevant industrialist preferably a member of the Chamber of Commerce operating within the command area – Member;
h. one independent academic with a specialist background in the environment – Member;
i. one independent academic with a specialist background in social mobilisation issues – Member;
Ex Officio :
j. the Naib Nazim or his nominee of the Zila which has the largest area within the jurisdiction of the AWB concerned provided that no Naib Nazim or his nominee shall be a Member of more than one AWB. – Member; and
k. the Director of the AWB – Advisory Member and Secretary.
2) Sub sections (3) to (9), of section 5, shall mutatis mutandis apply to the AWB.
3) The Chairman and the Members of the Board shall not have any function in the SIDA.
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34. Board of Management – 1) Subject to the overall control and guidance of the AWB Board of an AWB, the affairs of that AWB shall be managed by a Board of Management formed by the Director and as many Managers as that AWB may reasonably require for the purpose.
2) Sub-section (2) to (4) of Sub-section 12 shall mutatis mutandis apply to the Board.
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39. Sections applicable to AWBs – The provisions of sections 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 27 shall, mutatis mutandis, apply to an AWB.
40. Legal Status of an FO –
1) A FO constituted under this Ordinance -
a. shall be a body corporate, having perpetual succession and a common seal and shall by the same name, sue and be sued;
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c. shall exercise independent judgment in the conduct of its business; and
d. shall represent the farming community of the designated area of jurisdiction of minor/distributary, including non-agricultural users….
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67. Establishment.-As soon as may be after the commencement of this Ordinance, the Governor of Sindh shall, establish an Regulatory Authority of Irrigation and Drainage.
68. Legal status of the Regulatory Authority of Irrigation, Drainage and Flood Protection –
1) Under this Ordinance, the Regulatory Authority -
a. shall be a body corporate, having perpetual succession and a common seal and shall by the same name, sue and be sued;
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c. shall exercise independent judgment in the conduct of its own business….
69. Composition of the Nomination Panel –
1) The members of the Regulatory Authority shall be nominated by the Governor. In making these nominations, the Governor may follow the advice given by a nomination panel, comprising -
(a) the Chairman of the SIDA;
(b) the Chairman of the two AWBs, having the largest cultivable command area;
(c) the Chairman of the two FOs, having the largest cultivable command area;
(d) two eminent academics specialised in the field of water management; and
(e) two outstanding lawyers of twenty years standing.
2) The members of the panel under clauses (d) and (e) shall be nominated by the members under clauses (a), (b) and (c).
3) If the Governor disagrees with the advice of the nomination panel, he may request the nomination panel to revise its advice, which will then be final.
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2) In addition, the Regulatory Authority shall promote effective interaction and collaboration between the SIDA, the AWBs, the FOs and their various support bodies as well as fair dealing between FOs, WCAs, DBGs and their members. It shall, when invited to do so, arbitrate between them.
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95. Succession of the properties, assets, liabilities and staff – 1) Government shall complete appointment of the AWBs in the Province before 30 June 2005.
2) Government shall transfer to an AWB irrigation, drainage and flood protection infrastructure, office premises, stores, plant and machinery situated in its command area.
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100. Provisional role for SIDA as Regulatory Authority - Until Regulatory Authority is established the SIDA shall perform the functions of the Regulatory Authority under this Ordinance.
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109. Validity of proceedings – No act, proceeding, resolution or decision of any Body under this Ordinance shall be invalid by reason only of any vacancy or defect in the constitution of, or the appointment or nomination or election of any member of that Body.
110. Repeal of Sindh Irrigation and Drainage Act 1997 – The Sindh Irrigation and Drainage Authority Act, 1997, and the Sindh Irrigation Water Users' Association Ordinance, 1982, are hereby repealed.
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PART II
Sindh Irrigation and Drainage Authority Act, 1997
AN ACT
to provide for the establishment of the Irrigation and Drainage Authority in the Province of Sindh.
Preamble.-- WHEREAS it is expedient to provide for the establishment of the Irrigation and Drainage Authority in the Province of Sindh for equitable distribution of Irrigation water and effective drainage and flood control sustainable on long term basis through participation of beneficiaries in the operation and management of irrigation and drainage network and to provide for matters connected therewith or incidental thereto;…
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2. Definitions.-- In this Act, unless there is any thing repugnant in the subject or context,--
(i) "Authority" means the Sindh Irrigation and Drainage Authority established under section 3;
(ii) "AWB" means an Area Water Board established under section 23;
(iii) "Board" means the Board of Management constituted under section 7;
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(viii) "FO" means the Farmers Organization formed under section 26;
(ix) "Government" means the Government of Sindh:….
3. Establishment of the Authority.-- (1) As soon as may be after the commencement of this Act there shall be established an Authority to be known as the Sindh Irrigation Authority and Drainage Authority.
(2) The Authority shall be a body corporate with power to acquire hold and dispose of property, having perpetual succession and a common seat and shall by the said name, sue and sued.
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4. Board of constitution of the Authority. (1) The Authority shall consist of:
(a) Minister for Irrigation or any other person appointed by Government. Chairman
(b) Senior Member, Board of Revenue. Member
(c) Additional Chief Secretary Planning and Development Department. Member
(d) Secretary Finance Department. Member
(e) Secretary Irrigation and Power Department. Member
(f) Secretary Agriculture Department. Member
(g) Managing Director of the Authority. Member
(h) A representative of Farmer's Organization. Member….
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7. Board of Management.-- (1) Subject to the overall control and guidance of the Authority, the day to day management of the affairs of the Authority shall be carried out by a Board of Management consisting of he Managing Director and not more than four General Managers as may be appointed by the Authority with the approval of Government….
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23. Establishment of Area Water Board.-- (1) Government shall, within one year of the commencement of this Act notify AWBs together with their respective territorial jurisdictions which will preferably be based on the canal commands provided that such AWBs shall commence functioning on successful completion of pilot study of specified AWBs on canal commands….
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25. Functions of Area Water Board.-- The Board shall subject to control and direction of the Authority:
(1) formulate and implement policies to achieve effective, economical and efficient utilization of irrigation water at its disposal;
(2) ensure that it becomes fully operative as a self-supporting and financially self-sustaining entity within a period between seven to ten years from the date of its constitution;
(3) Plan, design, construct, operate and maintain the irrigation drainage and flood control infrastructure located within its territorial jurisdiction;
(4) perform any other functions assigned by the Authority.
26. A. Formation of FOs.
(1) Every SIDA and AWB shall, within one year of its establishment devise and implement pilot programme, policies and take steps there under to ensure that FOs are formed at the minor/distributary level in a phased and orderly manner in accordance with the relevant Bye-Laws and Regulations framed by the Authority;…
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29. Transfer of Rights and Liabilities.-- (1) On the commencement of this Act all assets and liabilities and all rights and obligations of the Irrigation Wing of the Irrigation and Power Department shall stand transferred to the Authority, on such terms and conditions particularly as regards to use and disposal of the said assets as maybe prescribed by Government.
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(4) The Irrigation & Power Department, Government of Sindh will be the controlling department of the Authority on behalf of the Government of Sindh.