Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Khawaja MUHAMMAD ASIF VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Gulzar Ahmed, Ijaz Ahmad Chaudhry Title: Khawaja MUHAMMAD ASIF vs FEDERATION OF PAKISTAN and others Case No.:Constitution Petition No,30 of 2013Constitutional Petition No,23 of 2013C.M.A. No,3354'Of
JUDGMENT
Reported As: 2013 SCMR 1205 Result: Order accordingly Judgment JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This Constitution Petition has been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan by one of the elected Parliamentarians, namely, Khawaja Muhammad Asif, wherein he has sought the following reliefs:-- "Declare, in the circumstances aforesaid, the acts of the caretaker government in effecting the aforesaid transfers/postings/ shuffling null and void, void ab initio and of no legal effect being in contravention of Constitution, constitutional conventions and law. ' In the alternative, declare that the aforesaid acts of the caretaker government of passing and signing of the orders effecting the aforesaid transfers/postings/shuffling were never, in fact, signed and/or passed and/or communicated for further necessary action. ' Direct, in the circumstances aforesaid, that all the postings/transfers/shuffling be reversed and the status quo ante be reverted to, i,e, the position when the care-taker government was sworn in. ' Direct the Federation/care-taker government to refrain from effecting any further appointments/transfers/shuffling during their remaining tenure." 2. As in C.M.As. 2991 and 3015 of 2013 in Constitution Petition No,23 of 2012 identical issues about appointments, transfers and postings, etc., were raised, therefore, a learned Bench of this Court, vide order dated 28-5-2013, referred the said miscellaneous applications to this Bench, to avoid overlapping of the proceedings and/or the possibility of rendering of conflicting judgments on similar issues in the event of parallel proceedings being conducted in two, different benches simultaneously. 3. On 22-5-2013 and 4-6-2013, orders were passed and the Secretaries of the concerned Ministries/Divisions of the Federal Government were called upon to furnish details of the Government servants/employees, who were appointed, transferred, posted, etc. Relevant paras there from are reproduced hereinbelow respectively:-- ' Order dated 22-5-2013 "3. He has stated that the Caretaker Government has made inter alia following transfers and postings in the civil service, statutory bodies, autonomous or semi autonomous bodies, corporations and regulatory authorities :-
---
## Page 2
(a) The Chairman of the National Highway Authority, Hamid Ali Khan was replaced, on 16-5-2013, by Sajjad Hussain Baloch; (b) ,The Chairman NEPRA was replaced, on 16-5-2013, and Justice (R) Ahmad Khan Lashari has been appointed; (c) The Managing Director SNGPL, Arif Hameed was replaced, on 15-5-2013, by Amin Tufail; (d) The Managing Director SSGCL was replaced, on 15-3-2013, by Rahat Kamal Siddiqui; (e) The Managing Director, Pakistan Mineral Development Corporation, Khalid Khokhar was replaced by Saifullah Khan; 0 The Chairman, National Fertilizer, Rizwan Mumtaz Ali was removed on 9-5-2013; (g) The Managing Director, Oil and Gas Development Corporation, Masood Siddiqui was removed on 6-5-2013; (h) The Chairman, State Life Corporation was removed on 16-5-2013; (i) The Chairman, Pakistan Tourism Development Corporation has reportedly been removed and an another appointed in his stead; (j) The Chairman, Pakistan Software Export Board has been removed and in his stead Saleem Ahmed Ranjha has been appointed who is a direct inductee of Yusuf Raza Gillani the previous Prime Minister; (k) The Director General, FIA who was appointed one month back is also reportedly in the process of being replaced; (l) That certain employees/officers of the Pakistan Telecommunication Authority have reportedly been removed from service without following the procedure as set out under the relevant statue; (m) That reportedly many other mid-level staff of such like aforesaid corporation/bodies have been shuffled/ transferred/ removed". (7) we do allow the learned Attorney-General for Pakistan to take instruction from the Government but in view of the importance of the issue involved in the petition, we direct that:- all the appointments, transfers and posting, which have been made by the Caretaker Government, reffered to hereinabove, shall stand suspended and till pendency of this petition no further appointment,transfer and posting shall be made by the Caretaker Government including the appointment of Federal Ombudsman, Tax Ombudsman and Anti-Dumping Tribunal,except the posting and transfers, which relate to day-to-day business of the Government and are required to be made in the interest of state and also to watch the interest of public, strictly following the rules and regulation on the subject, and in a transparent manner." Order dated 4-6-2013 "2 Khawaja Muhammad Asif,petitioner, appeared in person and stated that the order dated 22-05-2013 has not been complied with in letter and spirit inasmuch as the Caretaker Government without lawful authority terminated the services of some of those officers who were already working and performing their duties in Finance Division and I.T., either as Advisors or on contract. As duly elected government is likely to take over within a day or so and budget is likely to be prepared shortly, therefore, due to unlawful action of Caretaker Government concerned Divisions are facing a lot of difficulties.He has further stated that about more than 100 officers have been sent on deputations to different organizations from the Province of Balochistan after 22 May, 2013 without adhering to rules and regulations knowing well that the orders relating to policy making cannot be passed by the Caretaker Government. (4) Since all these issues are important in nature,therefore,we direct the Secretaries,Established, Cabinet,Health, Water and Power, Finance Division(s) and all other concerned Departments/Corporations to file of lists of the officers- (a) who were appointed against any post by the Caretaker Government after taking over including Chairmen etc. of the Corporations whose list finds mention in the order dated 22-5-2013; (b) whose services were acquired on deputation from different organizations on different positions in the Departments and Corporations controlled by the Federal Government; (c) whose services were terminated because they were holding different positions on contract basis in all the Government Departments/Hospitals; (e) Deputationists brought to Federal Government Departments from the province of Balochistan." In response to the above orders, summary of the transfers, submitted vide C.M.A. No.3515 of 2013, which reads as under:- STATEMENT INDICATING POSTINGS/TRANSFERS/ APPOINTMENTS MADE BY THE CARETAKER GOVERNMENT SI No.Group/ ServicePro- motionDirec- tiveMinistries/ Division's ProposalRe- PatriatedAddl Current ChargesRoutine Postings TransfersContract Appoint- mentsTransfer on depu-Total
---
## Page 3
tation 1. Autonomous Bodies--- 3 11 3 2 -- 11 -- 30 2. Secretariat Group31 59 18 7 -- 24 -- -- 139 3. Pakistan Admins- trative17 15 7 -- -- 33 -- -- 72 4.Police 67 9 6 1 -- 33 -- -- 16 5.Ex-Cadre -- 2 9 -- -- 33 -- -- 116 6.Misc. -- 6 -- -- -- 24 -- 44 74 Total 115 94 51 11 2 114 11 44 442
4. It may be mentioned here that in the order dated 22-5-2013 it had been observed that any individual whose posting, appointment or transfer was suspended and he was aggrieved of the said order,he might come forward by making application(s), which would be dealt with after hearing him/them. 5. It may be observed that learned Attorney-General informed that Justice (R) Faqir Muhammad Khokar, Chairman Anti-Dumping Appellate Tribunal, Justice (R) Ahmed Khan Lashari, Chairman NEPRA and Justice (R) Kalash Nath Kohli, Chairman Sacked Employees' Review Board have tendered resignations, which are under process, except the resignation of Chairman Anti-Dumping Tribunal, which has already been accepted on 31-5- 2013. Mr. Sher Afzal, Joint Secretary is directed that no sooner their resignations are accepted, he may inform the Court. 6. Learned counsel for the petitioner contended that under the Constitution of the Islamic Republic of Pakistan, the elected Parliamentary Government is responsible to achieve the object of good governance and in continuance of the same, it is obliged to post suitable persons being in the employment of the Government/private sector to head various departments, corporations and organizations controlled by the Government to run their result-oriented administration, as such elected Government has to fulfill the object and purpose of welfare of the citizens. The Caretaker Government, which is installed for a limited period of 2/3 months with the object of assisting the Election Commission of Pakistan in organizing fair, free, honest and just elections, cannot be considered to be the replacement of the elected Government. As such, the Caretaker Government is debarred from making large scale transfers, postings, re-shuffling of the Government employees, having far reaching effects/impact on the administration, commercial and industrial departments/organizations, because if a person is appointed against an important position, and his performance is not found suitable or it is not in accordance with the policies of the elected Government, it would not be possible for the Government to implement its policies. He further argued that the Caretaker Government had also exceeded its authority in assigning the reasons that the appointments, postings, transfers, reshuffling, etc., have been made following the directions/observations contained in the letter dated 2-4-2013 of the Election Commission of Pakistan. 7. Learned Attorney General for Pakistan did not address arguments on the issues involved in these cases as such and only confined to making certain references to the record, e.g., C.M.A. 2676 and 2770 of 2013 in Constitution Petition No,23 of 2012 filed pursuant to the Court's directions as well as C.M.A. No,3514 of 2013, etc., filed in the case. 8. In pursuance of this Court's order dated 22-5-2013, various individuals filed applications seeking relief against their postings, transfers, etc. And such of the applicants, who were present in Court, were also afforded opportunity of hearing. Some of them did not press their applications and requests so made by them were allowed. For convenience of reference, details of the applications are reproduced hereinbelow:- Applications dismissed in default:
S.#C.M.A. No.Applicant's NameDesignation/Deptt.Grievance/Remarks 1. C.M.A. 3343/13Sanauallah ShahM.D. ENAR, Petrotech Service Ltd.His services were placed at the disposal of SEC vide letter dated 9-4-2013.
---
## Page 4
2. C.M.A. 3373/13Dr.Fayyaz Ahmae RanjhaDirector General Pakistan Manpower InstituteHe was pre-mature repatriated to Province of Ranjha Institute Punjab vide Notification dated 9-5-2013.
3. C.M.A. 3382/13Wasi Muhammad KhanChairman NTC Applicant has challenged the notification dated 30-4-2013 whereby Mr . Vigar Rasheed Khan was appointed on contract basis as Chairman NTC by ignoring him.
4. C.M.A. 3396/13Muhammad Altaf BawanyD.G. (HRM,) NABThe applicant being regular Officer of NAB was serving as Chief Instructor , NIM (formerly NIP A) on deputation and vide Notification dated 28-2-201 1 he was repatriated to his parent department to join new assignment as D.G. NAB.
5. C.M.A. 3407/13Waheed ur Rehman KhattakAddl. SP (Saddar) Applicant was transferred from Punjab to Balochistan vide notification dated 16-5- 2013 by ignoring the seniority as two of his colleagues were senior to him.
6. C.M.A. 3408/13Muhammad Khalid KhattakD.I.G. Headquarters, IslamabadApplicant was promoted Headquarters, Islamabad from BS-19 to BS-20 vide Notification dated 3-4-2013 and thereafter vide notification dated 10-4-2013 he was transferred from the post of AIG (General) to DIG (HQ) and prayed that his case does not strictly fall in any kind of transfer and posting.
7. C.M.A. 3409/13Shabih HussainPSP BS-18-AC c/o ICT Police, IslamabadThe applicant was serving in KPK and vide Notification dated 15-5-2013 his services have been placed at the disposal of Federal Government for further posting in Islamabad Police and it was a routine transfer .
8. C.M.A. 3438/13Dr.Adbul RashidDirector , Pharma Licensing, Quality Assurance and Quality Control, DrugVide Notification dated 21-03- 2013 the applicant has been transferred from the post of Director Pharma Licensing
---
## Page 5
Regulatory Agency of PakistanQuality Assurance and Quality Control to the post of Deputy Director- General (Pharmacovigilance) DRAP , Islamabad.
9. C.M.A. 3480/13Muhammad NadeemAsstt. Gen. Manager MarketingThe applicant has been transferred vide Of fice Order dated 5-4-2013 from Zonal Head Gujranwala to AGM (Marketing) Lahore
10.C.M.A. 3492/13Tahir MaqsoodAdditional Secretary (awaiting posting)The applicant was serving as Senior Joint Secretary and his services have been placed at the disposal of Esst. Division vide Notification dated 10-05-2013 Applications dismissed where altenate remedy was availed:
S.# C.M.A. Applicant's NameDesignation/Deptt.Remarks 1. C.M.A. 3383/13Abid Javed AkbarC.E. Trade Development AuthorityRai Nawaz Kharral, learned counsel stated that the applicant has already approached to the Islamabad High Court for redressal of his grievance regarding termination of his contract. Dismissed.
2. C.M.A. 3478/13Shahbaz Ahmad KureshiConsultant Physician (Cardiology) in Polyclinic IslamabadMr. Husnain Ibrahim Kazmi, learned counsel for the caveater (Dr . Nasir Mont) has filed C.M.A.No,3491/13 and stated that the applicant's W rit Petition No,1999/2013 has already been dismissed on 13-5- 2013 and no CPLA has been filed before this Court against the said order and contrary to it the applicant opted to approach the Service Tribunal where the matter is pending.
---
## Page 6
When it was brought into the notice of the learned counsel for the applicant he stated that he may be allowed to withdraw this C.M.A. Dismissed as withdrawn.
3. C.M.A. 3481/13Dr. Anis KausarMedical Of ficer, FG Polyclinic IslamabadMr. Tariq Asad learned 3481/13 counsel for the applicant is not in attendance. This application is identical to C.M.A. 3478 which we have already dismissed. This application is also dismissed.
Application dismissed on the ground that appointment/transfer was made in routine:
1.C.M.A. No.3479 of 2013Noor Zaman KhanDirector NACT A, IslamabadApplicant was serving as Senior . Government Pleader in KPK and he has been transferred as Director NACT A, Islamabad and now has reported back to his parent department. Plea of the applicant is that his spouse is working in Islamabad, therefore, he was brought on deputation. Since the applicant has been reverted back to his parent department in routine, no interference is called for in the instant proceedings. Dismissed.
Applications which were not entertained:
1. C.M.A. No.3375 of 2013Muhammad Tariq Mehmood PirzadaM.D. PHA Applicant appeared and stated that he has been transferred on completion of tenure period, does not press this petition. Dismissed as
---
## Page 7
not pressed.
2.C.M.A. No.3377 of 2013Farooq Sultan KhattakDirector CDA, Islamabad Applicant states that he has been sent back to his parent department, therefore, does not press this C.M.A. Dismissed as not pressed.
3.C.M.A. No.3378 of 2013Rizwan Mumtaz AliChairman NFC Mr. Aftab Alam Rana, learned counsel for the applicant has no instructions because he could not answer to our queries. Dismissed accordingly .
4.C.M.A. No.3379 of 2013Asad Ahmed JaspalDir. Training Academy PTVMr. Shahid Mehmood Khokhar , learned counsel for the applicant states that applicant is in the employment of PTV Corporation and he is aggrieved from his transfer on the verbal orders of the Acting Manager . As the applicant is in the employment of a Corporation, therefore no indulgence can be shown in the instant proceedings. Dismissed.
5.C.M.A. No.3380 of 2013Zafar Iqbal BangashProducer,PTV Mr. Shahid Mehmood Khokhar , learned counsel for the applicant states that applicant is in the employment of PTV Corporation and he is aggrieved from his transfer on the verbal orders of the Acting Manager . As the applicant is in the employment of a Corporation, therefore no indulgence can be shown in the instant proceedings. Dismissed.
6.C.M.A. No.3397 of 2013Tahir Alam KhanD.I.G. SecurityMr. Tahir Alam Khan, applicant appeared and stated that his case pertains to actualisation, therefore, he does not want to press this application. Dismissed as not pressed.
---
## Page 8
7.C.M.A. No.3402 of 2013Syed Khalid Ali Raza GardeziJ.S. M/o Finance GopSyed Khalid Ali Raza Gardezi, applicant appeared and stated that he has been sent back to his parent department, therefore, does not press this petition. Dismissed as not pressed.
8.C.M.A. No.3404 of 2013Umar Ali J.S. States and Frontier Regions DivisionMr. Muhammad Akram Gondal, learned counsel stated that the applicants have been promoted on merits, therefore, he does not press these applications Dismissed as not pressed.
9.C.M.A. No.3405 of 2013Dr. Imran Zeb KhanChief Commissioner Afghan Refugees, Ibd. 10.C.M.A. No.3406 of 2013Amjad NazirSecretary States and Frontier Regions Division
9. It is to be observed that the other learned Bench of this Court, while hearing Constitution Petition No,23 of 2013 on 9-5-2013 was, prima facie, of the opinion that notification of the Election Commission dated 2-4-2013 did not provide any valid justification, much less a compelling reason, so as to justify the transfers, postings, etc., in question. The contents of notification of the ECP are reproduced hereinbelow:-- "ELECTION COMMISSION OF PAKISTAN NOTIFICATION Islamabad the 2nd April, 2013 ' No,F.8(12)/2012-Cord(1)- WHEREAS it is expedient to ensure that all those who are in the service of Pakistan perform their duties to serve public interest and assist the Election Commission of Pakistan in the conduct of General Elections 2013 fairly, justly, honestly and in accordance with law; ' AND WHEREAS it is also expedient to take pre-emptive steps so that no employee in the service of Pakistan should try to influence the election process in any manner to favour any particular political party or a candidate; ' NOW THEREFORE, in exercise of the powers conferred upon it under Article 218(3) of the Constitution read with sections 103(c) and 104 of the Representation of the People Act 1976, the directions dated 8-6-2012 of the Supreme Court of Pakistan in Workers' Party Pakistan's case and all other powers enabling it in that behalf, the Election Commission of Pakistan is pleased to direct the Federal and Provincial Caretaker Governments to: (i) Shuffle/transfer all Federal and Provincial Secretaries. However, if the caretaker government considers that a federal or provincial secretary need not be transferred/shuffled, it may refrain from doing so and intimate the same to the Election Commission. (ii) Assess whether the Chairpersons/Chief Executives of all autonomous and semi-autonomous and/or state owned bodies, IG Police, CCPOs, City Commissioners, DCOs, DPOs, SHOs, patwaris and EDOs are independent individuals and transfer those who do not meet this criteria. 2. Clauses (iii) and (iv) of this Commission's Notification No,8(12)/2012-Cord(1) dated 26th March, 2013 are hereby withdrawn. This directive shall not apply to specific transfers made under the directions of the Election Commission. ' By Order of the Election Commission of Pakistan. Sd/- (Syed Sher Afgan) Acting Secretary" 10. A perusal of the above notification suggests that it was issued by the ECP under Article 218(3) of the Constitution read with sections 103(c) and 104 of the Representation of the People Act, 1976 and the directions dated 8-6-2012 of this Court issued in Worker's Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) and all
---
## Page 9
other powers enabling it in that behalf, directing the Federal and Provincial Caretaker Governments to transfer/shuffle all Federal and Provincial Secretaries. However, if the Caretaker Government considered that a Federal or Provincial Secretary need not be transferred/shuffled, it would refrain from doing so and intimate the same to the ECP. We tend to agree with the learned counsel for the petitioner that under the notification noted hereinabove; the Caretaker Government had been authorized not to transfer/shuffle any Government servant, if it considered that it was not expedient to do so. But, at any rate, no powers were given to requisition the services of the employees on deputation or make fresh appointments against the available vacancies, or make pro forma promotions of officials of all grades in autonomous and semiautonomous bodies, corporations, regulatory authorities, statutory bodies, government controlled corporations, etc. 11. It is to be seen that the Caretaker Cabinet/Prime Minister were installed in the Federation and Provinces in the month of March, .2013 after dissolution of the National and the Provincial Assemblies on completion of their respective terms provided under Article 224(1) and (1A) of the Constitution, which read as under:-- 224. Time of election and bye-election.---(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 caretaker 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 caretaker Prime Minister or the care-taker Chief Minister, as the case may be. 12. As in instant case the Caretaker Prime Minister could not be appointed in terms of Article 224(1A) of the Constitution for want of consensus between the former elected Prime Minister and the Leader of the House, therefore, the provisions of Article 224A of the Constitution were invoked, and ultimately on account of inability of the Committee constituted under Article 224A(1) and (2) to decide the matter, the names of the nominees were referred to the Election Commission of Pakistan for finalizing the name of the caretaker Prime Minister within two days, thus, as a result of deliberations by the ECP, Caretaker Prime Minister was appointed in accordance with the provisions of Articles 224(1A) and 224A(1) and (2) of the Constitution. 13. Essentially, according to the settled and accepted norms/ practice, the Caretaker Government (Prime Minister and Cabinet) is required to perform its functions to attend to the day-to-day matters, which are necessary to run the affairs of the State and also to watch the national interests, etc., in any eventuality in absence of an elected Government, and such Government is not authorized to make decisions/appointments having effect on the working/policies of the future Government, which is likely to take over after the elections. Apart from providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country, it is not vested with the authority to take decisions concerning the affairs of the Government, which are bound to pre-empt the scope and sphere of activity, powers and jurisdiction of an elected Government. A Caretaker Government possesses limited powers and authority particularly in view of the fact that when it is appointed, there is no National Assembly in place and thus the all important aspect of accountability is absent. Further, the exercise of complete powers by the Caretaker Government goes against the doctrine of separation of powers which is the lifeline of any vibrant democracy. As noted earlier, the absence of legislature results in lack of checks and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.