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Petitioner: SHAH AHMAD KHAN VS Respondent: GOVERNMENT OF PUNJAB through Chief Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Hamid Farooq Title:SHAH AHMAD KHAN vs GOVERNMENT OF PUNJAB through Chief Secretary,
JUDGMENT
Reported As: PLD 2007 Lahore 191 Result: Petition accepted Judgment JUDGMENT MIAN HAMID FAROOQ, J.---Following are the detailed reasons for the short order dated 18-10-2006, which reads as follows:-- "I have heard the learned counsel for the petitioner, learned counsel representing different Advisors and the learned Assistant Advocate-General. After taking into consideration issues involved in the case, through the instant short order, which will be followed by detailed reasons later, it is held. And directed as under:-- (i) As neither the Constitution of Islamic Republic of Pakistan, 1973 nor The Punjab Government Rules of Business, 1974 nor any other law empowers and authorizes the Chief Minister/Governor of Punjab to appoint Advisors to Government of Punjab, therefore, all the appointments of Advisors to Government of Punjab, made by the Chief Minister/Governor of Punjab, are hereby declared to be void ab initio, without jurisdiction, illegal and having no legal effect. Resultantly, Notifications issued by the Government of Punjab for appointment of Advisors to the Government of Punjab, are equally without jurisdiction, thus, cancelled, annulled and quashed. (ii) Consequent to the above, all the Advisors to Government of Punjab shall cease to hold offices of Advisors-ship forthwith and the Chief Secretary, Government. Of Punjab is directed to immediately withdraw all the privileges and perks, attached to those offices. (iii) Appointments of Mian Muhammad Munir and Akhtar Rasool Chaudhry (the respondents), as Advisors to the Government of Punjab, are also held to be void, illegal, without jurisdiction and having no legal effect on the grounds firstly as held in para (i) above and secondly that these persons were convicted by the Honourable Supreme Court of Pakistan in the case reported as.
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Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969); resultantly, on both the afore noted counts notifications of their appointments as Advisors to the Government of Punjab are declared to be without jurisdiction, illegal and without lawful authority; they shall immediately cease to hold offices of Advisor-ship and the Chief Secretary, Government of Punjab, is directed to forthwith withdraw all the privileges and perks, attached to the offices. (iv) As aforementioned two persons were convicted by the Hon'ble Supreme Court of Pakistan, therefore, in future they shall not be appointed to any of the Public Office/Advisor or Special Assistant to Chief Minister and to any post directly or indirectly under the Provincial or Federation of Pakistan under any nomenclature. (v) Rule 6-A of the Punjab Government Rules of Business, 1974 was validly made by the Governor of Punjab in exercise of his powers conferred upon him under Article 139(3) of the Constitution of Islamic Republic of Pakistan. (vi) The Chief Minister of Punjab, in exercise of his powers under Rule 6-A of the Punjab Government Rules of Business, 1974, read with section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVII of 2002), is competent and empowered to appoint "Advisors to the Chief Minister" but not more than 5 Advisors and, thus, appointment of Advisors, if any, over and above the said number shall be deemed to be void, illegal and without jurisdiction. (vii) Similarly, The Chief Minister of Punjab, in view of Rule 6-A of the Punjab Government Rules of Business, 1974, read with section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVI of 2002), is within his legal authority to appoint not more than 5 "Special Assistants" and, thus, appointment of Special Assistants, if any, over and above the said number shall be deemed to be void, illegal and without jurisdiction." 2. Shah Ahmad Khan, the petitioner, filed the present constitutional petition, initially, against Government of Punjab (respondent No,1) and. Mian Muhammad Munir (respondent No,2), thereby challenging Notification No, SO (CAB II) 2-2-/03 dated 13-11-2004, whereby Mian Muhammad Munir was appointed advisor to the Government of Punjab, with the prayer that the same be withdrawn. It was, inter alia, pleaded in the petition that the said respondent is not a highly qualified person; has no extraordinary specialization in any field; he is hardly a graduate and is also involved in criminal cases. It was also stated that Mian Muhammad Munir was convicted by the Hon'ble Supreme Court of Pakistan for raising banners and slogans against the Judiciary, and disturbing the proceedings of the Court and he was sentenced to undergo simple imprisonment for one month and a fine of Rs,5000 or in default thereof to suffer simple imprisonment for further period of one month. Reference was made to the judgment reported as Shahid Orakzai v. Pakistan Muslim League (Newel Group) and 8 others (2000 SCMR 1969). It was the case of the petitioner that such a person is not entitled to hold any public job. 3. Government of Punjab submitted the para wise comments to the constitutional petition and besides raising preliminary objections, it was, inter alia, pleaded that respondent No,2 has risen from the position of Union Councilor to M.N.A.; he is a known political worker and that respondent No,2 is not presently appointed as advisor to the Chief Minister rather he was appointed as Advisor to the Government of Punjab in honorary capacity. The case of the Government of Punjab is that the Chief Minister, being the competent authority, has appointed respondent No,2 as Advisor to the Government of Punjab and the Chief Executive of the Province has appointed him in public interest. It appears appropriate to reproduce paras 6, 7 and 8 of the para wise comments, which reads as follows:-- "(6) Denied to the extent that respondent No,2 is not presently appointed/posted as Advisor to the Chief Minister Punjab, rather according to notification dated 15th March, 2005 (Annex. B) he was appointed as Advisor to Government of Punjab in an honorary capacity.
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(7) The Chief Minister Punjab being the competent authority has appointed respondent No,2 as Advisor to Government of Punjab keeping in view the vast political experience of the incumbent. (8) Denied. The appointment of respondent No,2 has been made by the Chief Executive of the Province in publi interest. It is however submitted here for information that respondent No,2 had not assumed the charges of the post of the Advisor to the Government of the Punjab in pursuance of Government of the Punjab, S&GAD's Notification No, S.0 (CAB-II) 2-3/03 (A) dated 13-11-2004 (Annex). Instead, respondent No,2 willingly offered his services to work an honorary capacity and as such the notification under reference, was revised and reissued on 15-3-2005 (Annex. B)." 4. Later on, upon an application (C.M.No,515 of 2006), filed by the petitioner, he was allowed to amend the constitutional petition, so as also to challenge the latest Notification No, SO/(CAB II) 2- 3/03(A) dated 15-3-2005 qua the appointment of Mian Muhammad Munir. Pursuant thereto amended petition was filed. 5. After hearing the learned counsel for respondents Nos.1 and 2, the. Petition was admitted for regular hearing, and operation of latest notification was suspended till the final decision of the constitutional petition, vide order dated 16-3-2006,which reads as follows:- "16-3-2006. M.Shahid Maqbool, Advocate for the Petitioner. Muhammad Hanif Khatana, Addl. A.G. For Respondent No,1 . Shehram Sarwar Ch: Advocate for Respondent No,2. Learned counsel for the petitioner, while referring to judgment reported as State v. Tariq Aziz M.N.A. And 6 others (2000 SCMR 751), states that respondent No,2, along with other persons, was convicted by the Hon'ble Supreme Court of Pakistan for committing contempt of Court, therefore, he could not have been appointed as Advisor. He adds that no Article of Constitution empowers either Chief Minister or Punjab Government to appoint Advisor to the Government of Punjab. Learned Law Officer and the learned counsel appearing on behalf of respondent No,2 could not emphatically refute the said contentions. 2. After hearing the learned counsel for the parties, I feel that the contentions raised by them need deeper consideration. 3. Admit. Notice. 4. Since the respondents are represented by their learned counsel, therefore, there is no need to issues any formal notice to them. C.M.No,516/2006 Operation of Notification No, SO(CAB-II) 2-3/03(A) dated 15-3-2005 shall remain suspended till the final decision of the constitutional petition. The Chief Secretary, Government of Punjab/competent authority is directed to immediately withdraw all the privileges and perks attached to the said office." 6. This Court directed the learned Advocate-General to furnish list of incumbent Advisors to Chief Minister/Government of Punjab, particularly, those who were convicted by the Hon'ble Supreme Court of Pakistan and the details of monthly expenditures incurred upon them. Pursuant thereto, the list of Advisors to Chief Minister/Government of Punjab was submitted to this Court, which list was incorporated in order dated 13-4-2006. Office was directed to issue notices to the Advisors. Order dated 13-4-2006 reads as under:-- "13-4-2006. Shahid Maqbool Sheikh, Advocate for the petitioner. Muhammad Hanif Khatana, Addl. A.G. For Respondent No,1 along with Saghir Ahmad, S.O. (Cabinet), S& GAD. Shehzad Shatikat and Shehiam Sarwar Chaudhary, Advocates for Respondent No,2. Ch. Aitzaz Ahsan, Advocate. This Court, on 27-3-2006, directed the Chief Secretary, Government of Punjab to furnish, to this Court, the list of Advisors to Chief Minister/Government of Punjab and the details of monthly
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expenditures being incurred upon them. Respondent No,1, in partial compliance with the said order, has furnished the following list of Advisors to Chief Minister and to Government of Punjab along with its written statement:-- List of Advisors to Chief Minister, Punjab Col. (Retd.) Shujat Ahmad Khan (3-1- 2003)Initiatives in Food Sector Removal of Encroachment Maj., (Retd.) Asghar Hayat Kalyar (3-1- 2003)Implementation of new initiatives including the Punjab Marriage Act, 2003 and Punjab Juvenile Smoking Act, 2003 Mr. Naeem Raza (3-1-2003) Punjab Marriage Act, 2003 Rana Ijaz Ahmad Khan (29-1- 2003) Law and Human Rights Malik Khalid Mehmood Waran (24-11- 2004)0698-7247 Ms. Saba Sadiq Chairperson (PSSB). List of Advisors to Government of Punjab Hafiz Muhammad Tahir Ashrafi (25-4-2000) Promotion of Religious Harmony Dr. Javaid Asghar (4-4-2003) New Health Initiative (Telemedicine) Dr. Faiza Asghar (4-4-2003) Child's Right Mrs. Sadia Shahzad (10-9-2003) Teacher's Training Programme Mr. Kamil Ali Agha (27-12-2003) Matters relating to Chief Minister's Secretariat Ch. Muhammad Siddique (27-12-2003) Mr. Rahat Quddusi (27-12-2003). Mr. Akhtar Rasool Chaudhary Mian Muhammad Munir Makhdoom Syed Iftikhar Hussain Gillani (24- 11-2004). Sardar Allah Yar Haraj Qaiser Amin Butt. Haji Muhammad Hanif Mr. Shaukat All Laleka Pir Mukhtar Ahmed Raja Muhammad Nasir Mian Abdul Sattar Farrukh Mehmood Shah (Media Advisor). Let notices be issued to aforesaid Advisors for 20-4-2006, except Mian Muhammad Munir, (because notification qua his appointment had already been suspended by this Court, vide order dated 16-3-2006) as to show cause under what authority of law they claim/hold the offices of Advisors to Chief Minister of Punjab and Government of Punjab. 2. I find that other portion of order dated 27-3-2006, qua details of monthly expenditures being incurred upon the Advisors, has not been complied with. Learned Law Officer is directed to provide the said details on or before the date fixed in this case. 3. M/s. S.M. Zafar, Abid Hassan Minto, Ch. Aitzaz Ahsan, Dr. Khalid Ranjha and Hamid Khan, Advocates are appointed as amicus curae, who shall assist this Court on the important legal question of public importance involved in this case. 4. Case to be listed on 20-4-2006." 7. On 30-3-2006 written statement was filed on behalf of Mian Muhammad Munir, thereby raising number of preliminary objections, viz. (i) the constitutional petition is not maintainable; (ii) if the writ petition is considered to be a writ of quo warranto, the same is incompetent as the respondent
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does not hold public office; (iii) notification of appointment of the said respondent as Advisor cannot be questioned by way of constitutional petition; (iv) respondent's appointment as advisor is purely on honorary basis; (v) the petition is tainted with mala fide as Mian Muhammad Munir was appointed as arbitrator in a dispute between the writ petitioner and his family members, wherein verdict went against the petitioner and that (vi) this Court has no jurisdiction to issue writ in exercise of its suo motu powers. On merits, it was submitted that the petitioner was elected as MNA twice, he had been involved in politics for a period of more than 30 years and his vast experience as politician led to the appointment as Advisor and that the respondent holds MBA Diploma from Canada, however, conviction of Mian Muhammad Munir by the Honourable Supreme Court was not denied. It was added that "The answering respondent has already served out his sentence". 8. On the next date, Rashdeen Nawaz Kasuri, Advocate appeared for Ch. Akhtar Rasool, who was also convicted by Hob'ble Supreme Court of Pakistan in the case of Shahid Orakzai (ibid). After hearing his learned counsel, this Court, after finding that the case of Ch. Akhtar Rasool is at par with Mian Muhammad Munir, also suspended the notification for appointment of Ch. Akhtar Rasool as Advisor to the Government of Punjab. Office was directed to issue notices to all other Advisors. 9. On 20-7-2006, after hearing the learned Law Officer and the learned counsel of respondent No,2, this Court directed the office to issue notices to all the Advisors/Special Assistants. It would be advantageous to reproduce interim order dated 20-7-2006, which reads as follows:-- "20-7-2006. M. Shahid Maqbool Sheikh, Advocate for the Petitioner. Muhammad Hand Khatana, Addl. A.G. For Respondent. No,1 along with Saghir Ahmad, S.O. (Cabinet) S&GAD Muhammad Shehzad Shaukat, Advocate for Respondent No,2. Nemo for Respondent No,3. Learned Law Officer, with reference to portion of preceding order, submits that although Government of Punjab, which issued the notifications under challenge, is defending its notifications issued in favour of the Advisors, yet they are entitled to show-cause notices. Muhammad Shahzad Shaukat, Advocate states that since this petition is not in the nature of "writ of quo warranto", and only notifications and appointments of Advisors have been challenged, therefore, there is no need to issue any notices to the Advisors, moreso when the Government of Punjab had continuously been represented by the learned Law Officer and is defending the notifications. 2. After hearing the learned counsel, I am inclined to summon the Advisors/Special Assistants, lest it be complained that they have been condemned unheard. Office is thus directed to issue notices to all the Advisors/Special Assistants, for 26-7-2006, which shall be served through Secretary (S&GAD). 3. In obedience to the preceding order, learned Addl. Advocate-General has placed on record the lists of Provincial Ministers, Parliamentary Secretaries and Special Assistants. The same is allowed to be placed on record. Its copy has been handed over to the learned counsel for the petitioner. 4. Learned Law Officer when asked to explain as to why, during the pendency of the present petition,Hafiz Muhammad Iqbal Khan Khakwani was appointed as Advisor, states that Ch. Naeem Raza resigned from his office, therefore, to fill the vacant office, Hafiz Muhammad Iqbal Khan Khakwani was appointed Advisor to the Chief Minister. 5. Present constitutional petition was instituted challenging the appointments of Advisors to the Chief Minister/Government of the Punjab on the grounds that two of them were convicted by the Hon'ble Supreme Court of Pakistan in a contempt case and that the appointments of these Advisors are incompetent and unconstitutional, inasmuch as none of the provisions of the Constitution of Islamic Republic of Pakistan empowers the Chief Minister/or other authority to appoint Advisors to the Government of Punjab/Chief Minister. This Court after calling for comments from the Government of the Punjab, and hearing all concerned, suspended the notification of appointment of Mian Muhammad Munir, vide order dated 16-3-2006. Subsequently, notification for
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appointment of Ch. Akhtar Rasool was also suspended vide order dated 21-4-2006. Undeniably, the appointment of Hafiz Muhammad Iqbal Khan Khakwani, as Advisor, was made on 2-4-2006, when the instant constitutional petition, involving important legal questions and constitutionality of the appointments of Advisors, was pending. It appears that the latest appointment was made in complete defiance, disregard and disrespect to the pending proceedings and this Court. It is true, as canvassed by the learned Law Officer, that no injunctive order was passed restraining the Government of Punjab for further appointing Advisors, however, propriety demands that Provincial Executives should as a mark of respect to this Court, have waited for the decision of the case. No "special circumstances" for this hasty and uncalled for action have been put forth by the learned Law Officer. It is unfortunate to observe that the Chief Minister of the Province has passed the order appointing Hafiz Muhammad Iqbal Khan Khakwani as Advisor. 6. It may be noted that the injunctive order was not passed with the genuine and reasonable expectation that the person/persons, at the helm of the affairs, would 'respect the pendency of the proceedings, but to the utter dismay of this Court, the concerned functionaries of the State have tried to lower the prestige, dignity and honour to this Court, which cannot be allowed to do under any circumstances. 7. In the above perspective, I have refrained myself from issuing contempt notices to the concerned person/persons, who have deliberately tried to frustrate the Court proceedings, however I am persuaded to pass an injunctive order. In view whereof, Government of Punjab is restrained from appointing any further advisor to the Government of Punjab/Chief Minister and the Chief Secretary is prohibited from issuing any notification qua such appointment if made, during the pendency of this petition. 8. It is high time to remind the bureaucracy of this country that it, civil servant and functionaries of the State are not bound to obey and comply with illegal, invalid, incompetent and unconstitutional orders passed by the Chief Minister/Ministers and are not obliged under the law to bow before the will of superiors Government servant is expected to only comply with those orders/directions of his superiors, which are legal and competently passed. Reference can be made to the judgment passed by the honourable Apex Court of the Country in a case reported as Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530. It appears appropriate to reproduce a portion of the said judgment, which, in fact, states the duties of a bureaucrat:-- We need not stress here that a tamed and subservient bureaucracy can neither be helpful to government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as In charge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representative the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an, incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action.
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9. Hon'ble Supreme Court of Pakistan in a recent judgment reported as Secretary, Education, N.- W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17, while relying upon the case of Zahid Akhtar (ibid), has held that 'the respondent cannot be punished for the reason that he had refused to act illegally, rather his, normal courage should be appreciated. 10. Case to come up on 26-7-2006 for hearing the main petition. 11. The learned Law Officer is directed to communicate today's order immediately to the Chief Secretary and to the relevant quarters. 12. Office shall transmit of today's order to the Chief Secretary, Government of Punjab, who is directed to circulate it to all the Secretaries to Government of Punjab for their guidance." 10. Afore narrated order dated 20-7-2006 was challenged by the Government of Punjab through an Intra Court appeal before the Division Bench of this Court, however, on the asking of this Court, it was reported on every subsequent dates of hearing by the learned Law Officer that no injunctive order, either suspending order dated 20-7-2006 or staying the proceedings of this Court, was passed. It may be noted that even before pronouncement of short order, Rizwan Mushtaq, Assistant Advocate-General was asked as to whether proceedings of this Court have been stayed, his reply was in negative. It is settled law that mere pendency of appeal shall not operate as stay of proceedings. 11. In obedience to the notices issued to Advisors/Special Assistants. Almagir and Jehangir A. Jhoja, Advocates entered appearance to represent some of them, however, others choose to remain absent and resultantly notices were issued to the absentees vide order dated 6-9-2006 in the following manner:-- "(i) Copies of the notices shall be affixed at outer gates and walls of Civil Secretariat Punjab, Lahore and Chief Minister Secretariat, Club Road, GOR I, Lahore and (ii) Notices shall be published in daily Newspapers i,e, "Nawa-i-Waqt" and "Dawn" for 26-9-2006." Publication was effected in afore noted two daily newspapers of their prints dated 12-9-2006. Additionally Deputy Secretary Cabinet addressed letter dated 18-9-2006 (copy whereof was placed on record) to all the Special Assistants/Advisors to Chief Minister and Advisors to the Government of Punjab, thereby advising them to appear before this Court on 26-9-2006.Pursuant to the above, all the Advisors/Special Assistants were represented through their learned counsel. 12. Since important legal questions were involved, therefore, this Court, vide order dated 13-4-2006, appointed M/s. S.M. Zafar, Abid Hassan Minto, Ch. Aitzaz Ahsan, Dr. Khalid Ranjha and Hamid Khan, Advocates to assist this Court, however, none of them except Ch. Aitzaz Ahsan, Advocate (who appeared once or twice) appeared to assist this Court. 13. I have heard, at length, the learned counsel for the petitioner, learned counsel representing Advisors/Special Assistants and the learned Assistant Advocate-General. It may be noted that at initial stages, learned Advocate-General argued the matter lInd highlighted the importance of rule 6-A of Rules of Business and section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVII of 2002) and Punjab Special Assistant (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No,LXXVI of 2002). 14. Learned counsel for the petitioner has contended that Mian Muhammad Munir and Akhtar Rasool were convicted by the Honourable Supreme Court of Pakistan in the case reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969, therefore, they are not eligible to be appointed as Advisors to the Chief Minister Government of Punjab. He, while referring to para. 50 (page 2058) of the said judgment, stated that they…
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