LAHORE: The Lahore High Court on Friday set aside the appointment of Lt Gen Muhammad Munir Afsar, a serving army officer, as chairman of the National Database and Registration Authority (Nadra). He was handed over the office by the last caretaker government in ‘national interest’.

“Seeking refuge behind plea of national interest is non-justiciable, which in fact violates the principle of separation of powers, where in fact the executive had exceeded or over stepped delegated authority and proceeded to introduce an incompatible rule,” said a 30-page judgement announced by Justice Asim Hafeez, scrapping the appointment of Lt Gen Munir Afsar as Nadra chairman.

Being the petitioner in person, a citizen, Ashba Kamran, had challenged the appointment initially made by the caretaker set-up on Oct 2, 2023, and consequently retained by the elected government through a new notification issued on March 28, 2024.

The main argument of the petitioner was that the federal government lacked authority to appoint a serving army officer to the office under the Nadra Ordinance, 2000.

LHC rejects defence plea that leakage of ‘sensitive’ data and ‘national interest’ led to direct appointment

She also questioned the legitimacy of Rule-7A of the Nadra Rules, 2020, which allows the federal government to appoint, when it considers expedient in national interest, any officer of the service of Pakistan as the chairman.

She argued that the incumbent government merely rubber-stamped the impugned appointment, unlawfully made by the caretaker government without adhering to the requirements of conducting fair and competitive process for the appointment by inviting potential aspirants.

Additional Attorney General Mirza Nasar Ahmad questioned the locus standi of the petitioner to agitate the matter, saying the challenge to the vires of Rule-7A and plea of contravention of fundamental rights cannot be adjudged in exercise of quo-warranto jurisdiction of the high court, when neither did the petitioner compete for the office nor was she an aspirant.

The law officer further argued that the federal government was competent to undertake rule-making exercise and when discretion was exercised, there was no requirement of issuing a public advertisement or to undertake a competitive recruitment process.

Nadra Chairman Lt Gen Afsar also defended his appointment through an independent counsel, claiming that qualifications prescribed in the law were met to hold the office.

Justice Hafeez ruled that a non-advertised and competitive deficient appointment is contrary to the mandate of Article 18 of the Constitution.

He maintained that resorting to mechanism or making of direct appointment, without qualification-based evaluation and determining relative suitability, is impermissible and any appointment made in disregard of qualifications was tantamount to abuse/excessive exercise of delegated authority.

The judge rejected a defence taken by the government that leakage of ‘sensitive’ data and ‘national interest’ led to the direct appointment.

The judge observed that mere leakage of data is no ground to abandon qualification-based and meritorious appointment(s).

“This close-door approach entails reduced competitiveness, exacerbates social inequalities and curtails professional opportunities, which results in intense brain-drain,” the judge said in the judgement.

The judge also brushed aside another argument that on two different occasions officer(s) in service were appointed as Nadra chairman.

The judge observed that an illegality committed previously would not validate the appointment under reference, not authorised by and in terms of the statute.

Justice Hafeez declared the appointment of Lt Gen Afsar without the “authority of law” and directed the registrar office to send a copy of the judgement to the federal cabinet, the ministry of interior and all departments concerned.

Published in Dawn, September 7th, 2024