The Islamabad High Court (IHC), in its detailed judgment regarding restoring Dr Tariq Banuri as chairman of Higher Education Commission (HEC), has expected that Prime Minister Imran Khan will restrain the chairman of PM’s Task Force on Science and Technology, Dr Attaur Rehman, from interfering in HEC’s affairs.
“We expect that the Controlling Authority i.e. the worthy prime minister will ensure that the HEC undertakes an independent, transparent and fair audit and evaluation of the institutes/centres wherein the chairman [of] PM’s Task Force has an interest and which have received substantial funding from the public exchequer,” IHC CJ Athar Minallah said in a 21-page verdict on Wednesday.
The high court said it was important for the premier to “demonstrably dispel any perception to the effect that the impugned notifications may have been issued to avoid implementation of the policy of the HEC to conduct a transparent and independent audit and evaluation”.
It said Dr Rehman’s role was “significant” in the process of the removal of Banuri – later reinstated – as the HEC chief. “It has become obvious from the record that he appears to have been affected by the policies of the HEC and the resistance is affirmed from the correspondence. The factor of conflict of interest should have been taken into consideration by the policy-making executive authorities.”
The court also said that the HEC had formulated a policy regarding audit and scrutiny relating to performance evaluation of those institutions which had received public funds. “Among the institutions that had received major funding included those of which the Chairman PM’s Task Force (Dr Rehman) was a patron e.g. the International Centre for Chemical and Biological Sciences.”
“The record placed before us shows that substantial funding from the exchequer, almost Rs40 billion, was received by the entities wherein the chairman [of] PM’s Task Force had an interest,” the IHC said, adding that it also appeared from the record that the latter and the defunct chairperson were at loggerheads over the stated policy.
It said Dr Rehman also resisted the performance evaluation and audit by the HEC.
“The ‘Controlling Authority’ under the HEC Ordinance suggested that the institutions be exempted from scrutiny and evaluation audit.”
The IHC observed that Dr Rehman apparently instead of offering the institutions for an audit by the HEC attempted to defend and justify the performance of the institutions in which he had an interest through publishing articles in daily newspapers authored by him.
“The record manifests his pivotal role in the deliberations and proposals, which had ultimately led to the issuance of the impugned notifications and removal of the defunct chairperson. The question of conflict of interest, thus, is crucial for adjudication of the petition,” the IHC ruling added.
The court also maintained that the First Amendment Ordinance was promulgated and notified in the official gazette on March 26, 2021, and the impugned notification declaring that the defunct chairperson had ceased to hold office was issued the same day.
However, it was withdrawn and a fresh purported notification, dated April 5, 2021, was issued. “The issuing authority appears to have realized that the language of the First Amendment Ordinance did not apply retrospectively and would not affect the security of tenure of the defunct chairperson.”
“However, the Second Amendment Ordinance was notified in the official gazette on April 8, 2021.
As a corollary, if the notification, dated April 5, 2021, was issued in anticipation of the promulgation of the Second Amendment Ordinance then to the extent of declaring that the defunct chairperson had ceased to hold the office was without lawful effect and jurisdiction.
“Nothing has been placed on record to show that the defunct chairperson was removed by the competent authority. We declare that the impugned notifications were issued without lawful authority and jurisdiction,” said the judgment.
Moreover, without prejudice to the foregoing discussion, the competent authority to appoint or remove the chairperson under the HEC Ordinance is the prime minister.
