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Petitioner: Malik Muhammad Bashir Lakhesar, Assistant Advocate-General Punjab VS Respondent: Government of Punjab etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Malik Muhammad Bashir Lakhesar, Assistant Advocate-General Punjab vs
Government of Punjab etc Case No.: Writ Petition No.14030 /2018 Date of Judgment:2018-11-12 Reported As: 2020 [M] C L R 735, 2019 PLC (C.S.) 266, PLD 2019 Lahore 1, 2018 LHC 2523 Result: Petition dismissed Judgment JAWAD HASSAN, J:- Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged the impugned order dated 11.09.2018, whereby his services were dispensed with and was removed from the Office of Assistant Advocate- General. He has also prayed for release of his salary from May-2018 to onwards. A. BRIEF F ACTS 2. The facts tersely revealed from the petition are that the Petitioner?s services were notified by the Respondent No.1 on 23.06.2009; in pursuance thereof the Petitioner assumed his duties as Assistant Advocate-General at Lahore High Court, Multan Bench, Multan on 24.06.2009. On 24.10.2017 while arguing a case, the Petitioner suffered severe heart problem, therefore, through docket issued by the Respondent No.6, the Petitioner was shifted to Ch. Pervaiz Elahi Institute of Cardiology, Multan (now Multan Institute of Cardiology). He remained in hospital for a long time. He submitted repeated applications for medical leave to the Respondent No.5 alongwith the prescription slips from 07.12.2017 to 02.07.2018 and again submitted his joining report to the Respondent No.5 through the Respondent No.6. Despite that he received order dated 11.09.2018 whereby his services were dispensed with w.e.f. 07.12.2017. Hence, this petition. 3. In reply to this petition, the Responden ts filed report and parawise comments denying all the allegations leveled in the petition and praying for dismissal of the same. The Respondents have specifically stated in the report and parawise comments that the Petitioner has never taken any medical leave which was even sanctioned or approved by the competent authority . B. SUBMISSIONS OF THE PETITIONER 4. Learned counsel for the Petitioner , Mr. Muhammad Ramzan Khalid Joiya, Advocate inter alia submitted that the Impugned Order is illegal and against the law and facts; that the same is not a speaking order; that the Petitioner
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has not been afforded opportunity of personal hearing, as such there is clear violation of principle of natural justice and Article 10-A of the Constitution; that prior to passing the Impugned Order neither any show cause notice was issued to the Petitioner nor any information was given; that the Impugned Order has been passed with retrospective effect which is illegal; that the Petitioner has been paid salary up-till May 2018 and the dispensation of his services was made w.e.f. 07.12.2017 as such the Impugned Order is self-contradictory; that the absence of the Petitioner was not willful rather due to his severe health condition; that the Petitioner?s applications for medical leave have not been considered rather the Impugned Order has been passed straightway. Learned counsel also contended that the absence of the Petitioner was not willful rather due to unavoidable circumstances, as such severe penalty as has been imposed vide the impugned order cannot be made; that the Petitioner has served the Department with due diligence, therefore, keeping in view the exigency of circumstances and demand of propriety, the impugned order may be set aside; that the Petitioner has appended all the relevant record i.e. medical prescription slips and history etc. which shows that the circumstances were beyond his control. In support of his contentions, learned counsel for the Petitioner has not relied upon any case law rather argued the case on the basis of available record only. C. SUBMISSIONS OF THE RESPONDENTS 5. On the other hand, learned Additional Advocate-General, Mirza Muhammad Saleem Baig vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the Impugned Order is result of continuous absence of the Petitioner from duty; that the Petitioner was heard personally by the Headquarter of the Advocate-General at Lahroe but even then he did not bother to attend the Office; that the Impugned Order has aptly been passed with retrospective effect because the Petitioner was absent from duty since 07.12.2017; that the Petitioner has no locus standi to file instant petition; that no vested right of the Petitioner was ever created in his favour as the post of the Petitioner i.e. Assistant Advocate-General was purely a pleasure post as such there is no violation of any fundamental or vested right; that this petition is not maintainable as the same cannot be filed to enforce his right; that the dispensation of service of the Petitioner is solely dependent upon the prerogative of the Respondents; that the conduct of the Petitioner to remain absent from his duty for such a long period and that too after affording opportunity of hearing in the Head Office at Lahore, shows unwillingness towards performance of his duties, as such the Impugned Order has rightly been passed and is not required to be interfered by this Court. 6. Mr. Khalid Masood Ghani, Assistant Advocate-General also laid much stress on the point that the Doctrine of Pleasure is a common law rule and has been adopted in Pakistan through its Constitution; that this doctrine has its origin in England; that the Doctrine of Pleasure is a special prerogative of the British Crown. He stated that in England, a servant of the Crown holds office during the pleasure of the Crown and he can be dismissed from the service of the Crown at pleasure. Hence, the tenure of office of a civil servant can be terminated at any time without assigning any cause. Even if there exists any special contract between the Crown and the civil servant concerned, the Crown is not bound by it, therefore, under Article 140 of the Constitution of Pakistan, the post of the Petitioner is a pleasure post and is liable to be dispensed with without notice and he cannot claim reinstatement as a matter of vested right; that the justification for the rule is that the competent authority should not be bound to let any person continue in public service whose conduc t is not satisfactory; that this common law Doctrine is based on Public Policy; that the public policy is that a public servant whose continuance in office is not or is against the public interest must be relieved of it. To strengthen his contentions, the learned Law Officer has placed reliance on the case titled Secretary , Ministry of Law, Parliamentary Affairs and Human rights, Government of Punjab and others v. Muhammad Ashraf Khan and others (PLD 2011 Supreme Court 7) and M. Salman Faruqui v. Javed Burki, Authorized Officer, Secretary , Ministry of Water and Power , Government of Pakistan, Islamabad and another (2000 PLC (C.S.) 717 ). 7. Both the learned Law Officers also argued the case on the point that the Petitioner services does not fall within the domain of Service of Pakistan'; that under the Constitution the service in Pakistan is regulated under Article 240 of the Constitution; that already the Hon'ble Division Bench of this Court in case titled Shahzad Niazi v. The Election Appellate Tribunal (PLD 2018 Lahore 748) has held as under:
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"Furthermore, the Service of Pakistan? has been defined in Article 240 of the Constitution which is reproduced below and is as follows: "Article: 240 Appointments to service of Pakistan and conditions of service" 240. Appointments to service of Pakistan and conditions of service.- Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined- (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly . From the above, it is crystal clear that "All-Pakistan Service" means a service common to the Federation and the Provinces. The appointment letter of the Petitioner was issued by the Government of the Punjab, Health Department, so obviously the Petitioner was serving in the Provincial Government. In Article 260 of the Constitution the Service of Pakistan? is clearly defined that "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of [Majlis-e-Shoora (Parliament)] or of a Provincial Assembly.". In view of the same, as in the appointment letter of the Petitioner it has specifically been mentioned that her services shall be governed by the Act, and that too was issued by the Provincial Government, therefore, we feel no hesitation to hold that the Petitioner was in Service of Pakistan?." 8. I have heard the arguments of both the sides and perused the record. D. MOOT POINT 9. The basic point needs to be determined in this case is whether appointment of the Petitioner as Assistant Advocate-General is a pleasure post? and can be terminated by the competent authority without any notice if he is absent from his duty. In order to thrash out the point and to proceed further with the matter , this Court intends to first examine the word pleasure post? from the Constitution and the relevant laws. E. PLEASURE POST (i) Constitution of Pakistan 10. Under the Doctrine of Pleasure, which has been recognized under our Constitutional framework, all the posts of the Advocate-General Office are held at the pleasure of the Government and are terminable at its will. However , the Pleasure Doctrine is a part of the special prerogative of the Crown in the United Kingdom and has also received the Constitutional sanction in Pakistan. Firstly; (a) Government of India Act, 1935, Under the Government of India Act, 1935, under which the Law Departmental Manual, 1938 was made, for the post of Advocate-General the terms pleasure post? was introduced in the subcontinent; the relevant Section thereof is Section 55 (3) which reads as follows: "(3) The Advocate-General shall hold office during the pleasure of the Governor , and shall receive such remuneration as the Governor may determine ." (bThe Constitution of Pakistan, 1956 Thereafter, under Article 72 of the Constitution of Pakistan, 1956 the post of Advocate-General was also made part of the Constitution as a pleasure post which reads as follows: "Article 72(1) The Governor shall appoint an Advocate-General for the Province, who shall hold office Article 72 (1) The Governor shall appoint an Advocate-General for the Province, who shall hold office during the pleasure of the Governor , shall receive such remuneration as may be determined by the Governor , and shall perform such duties as may be assigned to him by the Governor during the pleasure of the Governor , shall receive such remuneration as may be determined by the Governor , and shall perform such duties as may be assigned to him by the Governor ." (c) The Constitution of Pakistan, 1962
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However , under the Constitution of Pakistan, 1962 although the post of Advocate-General was inserted yet the word pleasure for the post of Advocate-General has not been used. The relevant Article (Article 85) of the Constitution is as follows: "(1) The Governor of a Province shall appoint a person who is qualified to be appoin ted as a Judge of a High Court to be Advocate General for the Province. (2) The Advocate-General shall perform such duties as the Governor may direct. " (d) Constitution of the Islamic Republic of Pakistan, 1973 At the latest, under Article 140 of the Constitution of the Islamic Republic of Pakistan, 1973 the Office of the Advocate-General is envisaged and the Governor appoints a qualified person as an Advocate-General who serves during the pleasure of the Governor/Government. The said Article reads as follows: "140. Advocate-General for a Province. (1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate-General for the Province. (2) It shall be the duty of the Advocate-General to give advice to the Provincia l Government upon such legal matters, and to perform such other duties of a legal character , as may be referred or assigned to him by the Provincial Government. (3) The Advocate-General shall hold office during the pleasure of the Governor [and shall not engage in private practice so long as he holds the office of the Advocate-General] (4) The Advocate-General may , by writing under his hand addressed to the Governor resign his office." From the above, it is apparent that the post of Advocate-General was always remained a pleasure post? except the Constitution of Pakistan, 1962. The work Governor ? is also defined under Article 260 of the Constitution as the "Governor" means the Governor of a Province and includes any person for the time being acting as the Governor of a Province. (ii) The Law Department Manual, 1938 11. The Law Department Manual, 1938 envisages the appointment of as many Additional and Assistant Advocate- Generals as may from time to time be determined to assist the Advocate-General. The Advocate-General under the said Article serves during the pleasure of the Government, and in line with that provision, sub-para (4) of para 1.18 of Law Department Manual explicitly mandates that an Additional or Assistant Advocate-General shall hold the Office during the pleasure of the Governor/Chief Minister and may liable to be removed from the Office at any time without notice. (iii) The Punjab Government Rules of Business, 2011 12. The appointments of the Additional and Assistant Advocate-General are made by the Chief Minister at his option and pleasure in terms of item 16 of Part-I of Seven th Schedule of the Punjab Governmen t Rules of Business, 201 1. F. DOCTRINE OF PLEASURE 13. Under the Doctrine of Pleasure, all public officers and servants of the Crown in the United Kingdom hold their appointments at the pleasure of the Crown and their services can be terminated at will without assigning any cause. The pleasure doctrine is not based upon any special prerogative of the Crown but is based on public policy and is in public interest and for public good. The basis of the pleasure doctrine is that the public is vitally interested in the efficiency and integrity of civil servic es and, therefore, public policy requires, public interest needs and public good demands that civil servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service. 15. As the appointment letter of the Petitioner in this case vividly reflects that appointment of the Petitioner alongwith other incumbents was made especially in the Public Interest?, therefore, if for some reason, such service is dispensed with by the competent authority , the same would also be considered to be done in the public interest as well. The notification dated 23.06.2009 for the appointment of the Petitioner alongwith other Assistant Advocate-General clearly states that "The Governor of the Punjab is pleased to appoint the following Assistant Advocates General, Punjab with immediate effect in the public intere st on the terms and conditions applicable to the post of Assistant Advocate General, Punjab." Consequently , when the Impugned Order has been
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passed in the public interest hence, where the public interest conflicts with private interest, the latter must yield to the former . It is next added that under Section 16 of the General Clauses Act, 1897, the authority which has the power to appoint a person shall have the power to remove him. For the sake of brevity , the said Section is reproduced below: 16. Power to appoint to include power to suspend or dismiss - Where, by any (Central Act) or Regulat ion, a power to make any appointment is conferred, then, unless a different intention appears, the authority having (for the time being) power to make the appointment shall also have power to suspend or dismiss any person appointed (whether by itself or any other authority) in exercise of that power ." G. DISPENSA TION OF PLEASURE POST WITHOUT NOTICE 16. The Advocate-General as well as the Additional Advocate-General and Assistant Advocate-General have no fixed tenure. The Advocate-General and other Law Officers in his Office constitute lawyers-client relationship with the Government. The said relationship is wholly different from the relationship of the Government with Government servants inter alia because, they may serve in their positions so long as the Government reposes confidence in them and may be removed without any procedural formalities. By nature of his appointment and functions, an Assistant Advocate-General has no vested right to force continuation of his appointment against the wishes of the Government, particularly , when he no longer inspires confidence of the Government due to his long absence from service. 17. It is pertinent to mention here that the appointment letter of the Petitioner as well as the terms and conditions of his service, appended by the Petitioner with the petition, vividly reflect that there are no specific terms and conditions relating to his removal from service etc., rather the terms and conditions mentioned therein relate to his privileges/remuneration. As discussed above, Clause 1.18 (4) of the Law Department Manual, 1938 states that an Additional or an Assistant Advocate-General shall hold the Office during the pleasure of the Government and shall be liable to be removed from the Office at any time without notice. As the post of the Petitioner is a pleasure post and his services were dispensed with on the basis of displeasure of the competent authority and the Petitioner has failed to point out that the Respondents have violated any terms and conditions of his service, the appointment of Petitioner as Assistant Advocate General does not bestow him any vested right. As such, in absence of violation of any vested or fundamental right, the Petitioner has no locus-standi to file this petition. 18. Even there was no need to issue any notice to the Petitioner by the competent authority before his services were dispensed with vide the Impugned Order because he had no vested right to such post at first place. Despite that he was given personal hearing at the office of Advocate General Punjab, Lahore; but after that he again remained absent from office. Careful scan ning of the Impugned Order also shows that the services of the Petitioner were dispensed with and he was removed from the post of Assistant Advocate-General without any stigma. Reliance in this regard can be placed on the judgment of this Court passed in the case titled Muhammad Yousaf Javaid Phapra and others v. Ombudsm an Punjab and 121 others (PLD 2018 Lahore 269) wherein it was held as under: 24. From the above, it can safely be held that there was no need to afford personal hearing before removing the Petitioners for the reason that they had no vested rights to defend. Reliance in this regard can be placed on the case titled Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary Sind h and others (2009 PLC (C.S.) 161) and Abdul Haq Indhar and others v. Province of Sindh through Secretary , Forest, Fishries and Livestock Department Karachi and 3 others (2000 SCMR 907) wherein the Hon?ble Supreme Court of Pakistan has held as under: "The principle of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in the statute and even if there is no such specific or express provisions, it would be deemed to be one of the parts of the State because no adverse action can be taken against a person without providing right of hearing to him. But at the same time this principle cannot be deemed to be of universal nature because before invoking/applying this principle one has to specify that the person against whom action is contemplated to be taken prima facie has a vested right to defend the action and in those cases where the claimant has no basis or entitlement, in his favour he would not be entitled for protection of the principles of natural justice.
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Principle of "audi alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person. If this rider is not placed for applying the principle of "audi alteram partem" then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is high time to ensure that transaction between the individuals vis-a-vis the State are just, fair, open, honest and transparent. There fore, action of individuals which is not honest and based on mala fides may not be allowed to exist merely for the reason that the principle of natural justice was violated." 25. Furthermore, from the bare examination of the Impugned Orders, it is reveals that the same has been passed on the basis that the services of the Petitioners are no more required. The Petitioners services were removed similicitor and there is no stigma on their career/character . Therefore, the Petitioners have nothing to agitate before this Court through availing the remedy under Article 199 of the Constitution." (emphasis added) 19. Moreover, the contention of the learned counsel for the Petitioner that the Petitioner has been condemned unheard is not instructive. The letter dated 18.08.2018 reveals that when the pay of the Petitioner was stopped and he moved various applications for medi cal leave, he was called and he attended the Office of the Advocate- General, Punjab at Lahore and was given different options which the Petitioner promised to consider but despite that he did not attend the Office till date (18.08.2018) and remained absent from the Office. As such, the Petitioner cannot say that he has not been given any opportunity of hearing. Even otherwis e reliance can be placed on the case titled Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 Supreme Court 483 ) wherein it has been held as under: "Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice No stricture was passed qua their eligibility , integrity , entitlement, qualifications and besides that their removal from the office of Judges does not amount to be a stigma and therefore, the doctrine of `audi alteram partem' argued with vehemence cannot be pressed into service which otherwise is not universally recognized due to certain limitations." Further reliance is also made on the case titled Abdul Haque Indhar and others. Y. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907) and Nazir Ahmad Panhwar v . Government of Sindh through Chief Secretary , Sindh and others (2009 PLC (C.S.) 161 ). 20. Furthermore, admittedly the Petitioner was absent from 24.10.2017 when allegedly he suffered severe heart problem and he remained absent till the Impugned Order was issued. The Petitioner has appended with the Petition copies of the medical leave applications alongwith prescription slips which do not bear any endorsement of the Respondents. This factum further bolsters the stance of the Respondents that Petitioner filed aforesaid applications after stoppage of his pay vide order dated 23.05.2018. In addition to that the Petitioner asserts that he filed aforesaid applications within time but on the other hand the Respondents? stance is otherwise, as such a factual controversy arises which this Court under its constitutional jurisdiction cannot resolve. 21. Moreover , there is chain of judgments of Honorable Supreme Court of Pakistan wherein, long absence from duty without intimation was treated as gross misconduct which entails dismissal from service. Reliance is placed on Director-General, Pakistan Rangers vs. Federation of…
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