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Petitioner: Ashfaq Ahmad Kharal etc. VS Respondent: Province of Punjab through its Secretary, Law & Parliamentary Affairs etc.
Court Name: Lahore High Court Judge(s):Ali Baqar Najafi, Abid Aziz Sheikh, Shahid Karim, Asim Hafeez, Anwaar
Hussain Title:Ashfaq Ahmad Kharal etc. vs Province of Punjab through its Secretary, Law & Parliamentary Affairs etc. Case No.: W.P. No. 5324-2023 Date of Judgment:2023-02-14 Reported As: 2023 LHC 603, PLD 2024 Lahore 129 Result: Petition Allowed Judgment On 14.02.2022 these Writ Petitions were disposed of through the following short order:- "For the reasons to be recorded later, with a majority of four to one with Asim Hafeez, J. dissenting, these writ petitions are partially allowed in the following terms:- 1. The removal of the Advocate General Punjab and other law officers vide notifications dated 24.01.2023 is upheld. 2. The notification of even date for the appointment of new law officers to the extent of law officers who retained their offices in the political government immediately preceding the last government and headed by Muhammad Hamza Shahbaz Sharif as Chief Minister, is set-aside." This is the detailed order of the previous short order.
ORDER
ALI BAQAR NAJAFI, J., This order shall dispose of the instant W.P. No. 5324 of 2023 titled "Ashfaq Ahmad Rharal and 21 others (Ahmed Awais, Advocate-General as petitioner No.22) Versus Province of Punjab etc, as well as W.P. No.5343 of 2023 titled "Muhammad Awais Ahsan Joyia etc. Versus Province of Punjab etc", Writ Petition No. 5055 of 2023 titled "Tipu Salman Makhdoom Versus Province of Punjab etc" and Writ Petition No. 6545 of 2023 titled "Asif Afzal Versus Province of Punjab etc." as in all same questions of law and facts are involved.
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2. In all these writ petitions since notifications dated 24.01.2023 have been challenged whereby Advocate General Punjab, 32 Additional Advocate-Generals and 65 Assistant Advocate-Generals (total 97) have been removed and 46 new law officers have been appointed and look after charge was given to an Additional Advocate-General by the caretaker Chief Minister, Punjab. The impugned notification is scanned as under for ready reference:-
The notifications appointing the new law officers are also scanned as under:-
The notification of removal of the Advocate-General, Punjab and assigning look after charge to an Additional Advocate-General, Punjab is also scanned as under:- 3. Brief facts giving rise of the filing of these Constitutional petitions are that on 12.01.2023 on the advice of the then Chief Minister, Punjab, Mr. Pervez Elahi, to the Governor Punjab, the Punjab Assembly stood automatically dissolved on 14.01.2023 after 48 hours under Article 112 of the Constitution of Islamic Republic of Pakistan, 1973. On 22.01.2023 the Caretaker Chief Minister Syed Mohsin Raza Naqvi, was appointed by the Election Commission of Pakistan. On 24.01.2023, three impugned notifications were issued whereby the petitioners/law officers including the Advocate- General Punjab have been removed and new law officers were appointed. These Constitutional petitions for removals and new appointments have been challenged before the Single Bench of this Court who referred the matter for constitution of a larger Bench upon which Hon'ble Chief Justice on 04.02.2023 has constituted this Bench. 4. Constitutional position of a Chief Minister is that under Article 129 of the Constitution of Islamic Republic of Pakistan, 1973 the executive authority of the Province is to be exercised in the name of the Governor by the Provincial Government through a Cabinet consisting of Chief Minister and under Article 130 thereof, the Provincial Ministers are to act through the Chief Minister as its head, to aid and advise the Governor in the exercise of his executive functions. Under sub-Article 5 thereof, the Governor shall call upon an elected member to assume the office of the Chief Minister who shall take oath in the form set out in the 3rd schedule and that there was no restriction on the number of terms for the office of the Chief Minister. Under Clause 6 of the said Article, the Cabinet as a whole is collectively responsible to the Provincial Assembly and that the total strength of the Cabinet shall not exceed 50 members or 11% of the total membership; i.e. whichever is higher. 5. Factual position in the present case is that the Provincial Assembly of Punjab automatically stood dissolved on the advice by the Chief Minister made on 12.01.2023 after expiry of 48 hours on 14.01.2023 as envisaged under Article 112 of the Constitution. Under Article 224 of the Constitution, a general election of the Provincial Assembly is to be held within a period of 60 days from the date of expiry of the term of the Assembly and that on dissolution of the Assembly on completion of its terms or in case it is dissolved automatically under Article 112 of the Constitution (as in the present case) the Governor was to appoint a caretaker Cabinet but first a caretaker Chief Minister was to be appointed in consultation with the leader of the Opposition. As an agreement could not be reached, therefore, the procedure provided under 2nd proviso the Article 224-A was followed under which three nominees are to be sent each from the Opposition as well as the Government to the Chief Election Commission; out of which one is to be announced as a caretaker Chief Minister. Due to the lack of consensus, the Election Commission of Pakistan appointed Syed Mohsin Raza Naqvi as the caretaker Chief Minister who took the oath on 22.01.2023. On 24.01.2023 the impugned notification was passed, hence these petitions. 6. Barrister Abid S. Zubairi, learned counsel for the petitioners contends that the caretaker Government so appointed was to perform functions within the scope of Section 230 of the Election Act, 2017 and that it would restrict itself to the activities that are of routine, non-controversial and urgent in nature that too in the public interest and revisable by the future Government elected after
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general elections in the Province and that it was not to enter into any major contracts or undertakings if it was detrimental to the public interest or was not to make promotions or major appointments or transfers of public officials, unless it is considered expedient and in the public interest after approval of the Election Commission. Learned counsel further argues that under Rule 2(e) of the Punjab Government Rules of Business, 2011, Cabinet means Cabinet of the Ministers and the Chief Minister as its head as mentioned in Article 130 of the Constitution and under Rule 13 of the rules ibid no order shall be issued without the approval of the Governor in cases mentioned in Part- A of 3rd schedule and that no order shall be issued without the approval of the Chief Minister in case involving policy decision or departure from the policy decision as mentioned in Part-A of 7th schedule. He refers to the clause 16 of the 7th schedule to argue that Additional Advocate-Generals and Assistant Advocate-Generals are to be appointed, removed in accordance with the terms and conditions of service under this provision. He refers to Clause 4 of Part-A of 3rd Schedule under which a Chief Minister is to advise the Governor for the appointment, removal and regarding the terms of service of the Advocate-General. Under Clause 1.5 of the Law Department Manual the Advocate-General is governed by the Advocate-General terms and conditions of service Rules, 1962 who is a whole time employee of the Government and shall hold office during the pleasure of the Governor and liable to be removed from the office at any time without notice. He could submit resignation to the Government through the Law and Parliamentary Affairs Department and he was not to indulge into private practice of any kind. Under Clause 1.6 duties have been assigned to Advocate-General to advise the Government for initiation of criminal proceedings by the State or execute action by the Government and is duty bound to advise on other legal matters which may have been referred to him by the Provincial Government or the Governor. He would represent the State or arrange the representation in criminal cases in High Court and Supreme Court and quasai criminal matters and the Government could direct the Advocate-General to represent in a case owing to its special importance. He is supposed to appear or arrange the appearance of law officer/state counsel in High Courts and Supreme Courts. Under clause 1.18 the Government from time to time could appoint number of Additional Advocate-General and Assistant Advocate- General and could appoint them on the basis of their qualification and experience. 7. Learned counsel for the petitioner further contends that the caretaker Chief Minister although takes the same oath as that of the Chief Minister of an elected Government yet his powers have been circumvented under Section 260 of the Election Act, 2017. Contends that removal of the law officers and appointment of new incumbents is tainted with malafide since the old law officers of the second last Government have been re-adjusted. Adds that the appointment and removal was made on the same date and that look after charge was given to an Additional Advocate-General in a strange manner. He refers to the case laws cited as Khawaja MUHAMMAD ASIF versus FEDERATION OF PAKISTAN and others (2013 SCMR 1205) RAB NAWAZ RANDHAWA, ADVOCATE and others versus Rana MUHAMMAD AKRAM, ADVOCATE and others (PLD 2014 Lahore 591) and lastly Raja MUHAMMAD ZUBAIR and others versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others (PLD 2022 Peshawar 100) to argue that the caretaker Chief Minister cannot appoint or remove the law officers unless there is a reason to do that. He also refers to FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others versus AFTAB AHMAD KHAN SHERPAO and otehrs (PLD 1992 Supreme Court 723) to argue that office of the Advocate-General is only for the purposes of providing assistance to the Courts and at time he is not supposed to watch the interest of his own client but assist the Court in his capacity as officer of the Court, hence the principle of right to choose a representative by a client will not be applicable stricto senso. He further adds that Advocate-General is duty bound to make a statement before the Court under specific instructions and that the caretaker Chief Minister cannot make statement regarding implementation of a policy decision for the
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simple reason that he is there for an interim period, therefore, such a policy statement could not be expected from the Advocate-General office. He further adds that day-to-day business of temporary nature can be looked after by the law officers appointed by the Previous Government and that their removal has to be based upon public interest which is lacking in the present case. Finally, argues that element of neutrality in the decision of the Chief Minister particularly in the appointment of law officers, is not above board. 8. Mr. Mansoor Usman Awan, ASC, learned counsel for the respondents, however, conversely submits that the principles governing the attorney- client relationship are fully attracted to the Advocate-General and the Additional & Assistant Advocate Generals as they are neither public/government servants nor contractual employees; having no master-servants relationship with the employee and the very fact that their law practice license are not suspended, is evident of the fact that their conduct is regulated by the disciplinary bodies called Bar Councils. Adds that they hold their offices only and only during the pleasure of the Governor of the Punjab. Further adds that the powers of the caretaker Chief Minister are derived from Article 224 third proviso of the Constitution of Pakistan and the powers given to him under Article 132 and 127 thereof cannot become redundant keeping in view section 230 of the Election Act, 2017 by any principle of statute interpretation. He further adds that the public interest behind the notification was to give the proof of being a neutral government with the sole purpose to work within the framework of law and the constitution. Finally, adds that the court can always provide guidelines for the appointment of the law officers, if the court is dissatisfied with such appointees. 9. Arguments heard. Files perused. 10. After hearing the learned counsel for the parties and perusing the files, we have straightway observed that in view of the lack of consensus and confrontationist approach adopted by the Government and the Opposition the Constitutional mechanism had to prevail under which not only the Punjab Assembly stood automatically dissolved but also a caretaker Chief Minister, Syed Mohsin Raza Naqvi, was appointed by the Chief Election Commissioner under Article 224 after when the consensus was not reached between the members of the Government and Opposition in its committee, therefore, the said appointment was made by the Election Commission of Pakistan with unanimity of its members. This is the background in which the petitioners have approached this Court to seek indulgence in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against their removal as law officers and the appointment of new law officers. 11. Before we can understand the powers and authority of the Caretaker Government in reality, we need to understand some of the common but basic concepts which would guide us to reach on a just decision of the present cases. We enumerate these in the following paragraphs:- A Caretaker & Caretaker Government. 12. A caretaker is a person who takes care of certain things and fulfills his responsibility so entrusted to him. Such a person holds the fort to protect and discharge his assigned duties. For further understanding, it will be expedient to refer different definitions of a caretaker. A caretaker is the one who looks after in the owner's absence[1]. A caretaker is a person who is in charge of maintenance of building, estate, etc. superintendent and one who or that which temporarily performs the duties of an office[2]. The word caretaker Government is a government temporarily in power until the election is held[3]. It is a temporary Government commissioned by the Governor- General or State Governor, usually for a short period until the stable Government can be formed. Caretaker governments are established during the time of uncertainty when it is not clear whether any party or coalition of parties is capable of forming a stable government. Caretaker governments carry on the routine business of government, but they are expected to refrain from making important policy decisions.
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The purpose of caretaker Chief Minister under the Constitution of Islamic Republic of Pakistan, 1973. 13. A caretaker Chief Minister takes oath as set out in the Third Schedule of the Constitution from the Governor which is the same assigned to a regularly elected Chief Minister in order to exercises his powers as Chief Executive of the Province, therefore, under Article 224 the caretaker Chief Minister then forms his Cabinet by the order of the Governor on the advice of the Chief Minister under 3rd Proviso of Article 224. Undoubtedly, he is the Chief Executive of the Province and discharges his duties under the Constitution and the Election Act, 2017. He is supposed to be a strong Chief Executive of the Province as he is assigned an onerous duty to thoroughly implement the policy of Election Commission in the Provinces to hold fair, free and transparent elections having approval by the public-at-large. Article 224 of the Constitution and Section 230 of the Election Act, 2017 are reproduced for ready reference: Time of Election and bye-election. 224. (1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.] (1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care-taker Cabinet: Provided that the care-taker Prime Minister shall be [appointed] by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: [Provided further that if the Prime Minister or a Chief Minister and their respective Leader of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care-taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed:] Provided [also] that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be. (1B) Members of the care-taker Cabinets including the caretaker Prime Minister and the care-taker Chief Minister and their immediate family members shall not be eligible to contest the immediately following elections to such Assemblies. Explanation.-- In this clause, "immediate family members" means spouse and children.] (2) When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls. (3) An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur. (4) When, except by dissolution of the National Assembly or a Provincial Assembly, a general seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy. (5) When a seat in the Senate has become vacant, an election to fill the seat shall be held within thirty days from the occurrence of the vacancy. [(6) When a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be
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filled by the next person in order of precedence from the party list of the candidates to be submitted to the Election Commission by the political party whose member has vacated such seat.] [Provided that if at any time the party list is exhausted, the concerned political party may submit a name for any vacancy which may occur thereafter.] 230. Functions of caretaker Government.--(1) A caretaker Government shall (a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government; (b) assist the Commission to hold elections in accordance with law; (c) restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and (d) be impartial to every person and political party. (2) The caretaker Government shall not-- (a) take major policy decisions except on urgent matters; (b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government; (c) enter into major contract or undertaking if it is detrimental to public interest; (d) enter into major international negotiation with any foreign country or international agency or sign or ratify any international binding instrument except in an exceptional case; (e) make promotions or major appointments of public officials but may make acting or short term appointments in public interest; (f) transfer public officials unless it is considered expedient and after approval of the Commission; and (g) attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections. (3) The Prime Minister, Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form B and the Commission shall publish the statement of assets and liabilities in the official Gazette. (4) In this section, caretaker Government' means the caretaker Federal Government or a caretaker Provincial Government. 14. For the purposes of our discussion the main emphasis is laid upon Section 230(2)(e) by the learned counsel for the petitioner whereby the caretaker Government is not entitled to make promotions or major appointments of public officials but may make acting or short term appointments in public interest and that the caretaker Government has to restrict itself to the activities that are of routine, non-controversial and urgent in nature that too in the public interest, revisable by the future Government elected Government. But in order to interpret Section 230, we will have to refer to the preamble of Election Act, 2017 according to which it was expedient to amend, consolidate and unify laws relating to the conduct of elections and matter connected therewith or ancillary thereto. It deals with de-limitation of Constituencies, Elected rolls, Conduct of Elections in the Assemblies, Senate, Falling of Election Expenses, Resolution of Election Disputes, Formation of Political Parties, Allocation of Symbols, Conduct of Elections of the Local Government and Chapter XIV deals with the related other matters. Importantly, this Act does not define the caretaker Chief Minister or caretaker Government but under Section 4 thereof, he has power to issue directions or orders for the performance of its functions and duties and under Section 5(2) it is the responsibility of all executive authorities of the Federation and Province to perform such duty
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assigned to the Commission in discharge of his functions. Under Section 8 it is within the power of Commission to ensure fair elections during the conduct of the elections. Sections 4, 5 and 8 are reproduced as under:- 4. Power to issue directions.--(1) The Commission shall have the power to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it and an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction or order shall be enforceable throughout Pakistan and shall be executed as if it had been issued by the High Court. (3) Anything required to be done for carrying out the purposes of this Act, for which no provision or no sufficient provision exists, shall be done by such authority and in such manner as the Commission may direct. 5. Assistance to the Commission.--(1) The Commissioner or the Commission may require any person or authority to perform such functions or render such assistance for the purposes of this Act as he or it may direct. (2) It shall be the duty of all executive authorities in the Federation and in the Provinces to render such assistance to the Commissioner and the Commission in the discharge of his or its functions as may be required by the Commissioner or the Commission. (3) The Federal Government and each Provincial Government shall make available to the Commission such staff as it may require for the performance of its functions under this Act: 8. Power of Commission to ensure fair election.--Save as otherwise provided, the Commission may-- (a) stop the polls at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election; (b) review an order passed by an officer under this Act or the Rules, including rejection of a ballot paper; and (c) issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules. But under the exclusively allocated Chapter XIV of the Act…
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