P L D 2013 Lahore 598 (PLP)

Laws Cited

Representation

• ----Para. 1.18(4)---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Additional Advocate General/ Assistant Advocate General holding office during pleasure of Government---Removal from such office/employment without assigning any reasons---Justiciability---Such employment at pleasure (of Government) was justiciable.
• ----Para. 1.18(4)---Constitution of Pakistan, Arts. 25 & 199---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S.4(b)(v)---Constitutional petition---Additional Advocate General/ Assistant Advocate General (law officers) holding office during pleasure of Government---Removal of selected law officers by Caretaker Provincial Government without assigning any reasons or providing intelligible criteria for termination---Legality---Discrimination---By way of impugned order of Caretaker Provincial government 13 Assistant Advocates General and 7 Additional Advocates General (law officers) were "removed from office with immediate effect" without assigning any reasons---Pleas of removed law officers were that their removal was arbitrary as it was selective without reference to any criteria in targeting them; that no intelligible differentia distinguished them from the law officers that had been retained in service, therefore, their removal order was discriminatory in effect---Plea of Caretaker Provincial Government that appointment of Additional Advocate General and Assistant Advocate General was at the pleasure of the government, therefore, they might be terminated at any time without assigning any reasons---Validity---Law officers in question had been removed from office without assigning any reason---Some justification for removal from service of a law officer had to exist because such action was justiciable to assess its fairness---Since in the present case no reasons were assigned by the Caretaker Provincial Government for removing law officers in question, therefore, it could be interpreted as loss of confidence of the government in them---On account of the peculiar nature of lawyer-client relationship attendant to the post of law officers in question, the requirement for disclosure of reasons for removal from service might arguably be dispensed, however the manner in which they were removed from office, namely by their individual selection whilst many other law officers had been retained in office, created differentiation between two groups of law officers---As no reasons for impugned action were given, therefore, a heavy burden was cast on the Caretaker Provincial Government to justify selective loss of confidence in the removed law officers---Presuming that law officers in question had been removed by Caretaker Provincial Government to maintain strict neutrality as they had been appointed by the (previous) political government, then the retention of other law officers appointed by the same (previous) political government had no justification---Allegation of discrimination was well founded on such ground--- Terminology used in the removal order namely "removal from service" had a negative connotation in the context of government employment, and was a penalty under relevant provincial disciplinary law, namely S.4(b)(v) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Removed law officers had a fundamental right under Art.25 of the Constitution that identically placed persons must be treated identically---Difference between law officers who had been removed from office against those who had been retained had to be based on intelligible criteria---Classification adopted by Caretaker Provincial Government was arbitrary and violated Art.25 of the Constitution---Removal of law officers in question was declared to be illegal and of no legal effect---Constitutional petition was allowed accordingly.
• Imtiaz Ahmad Kaifi, Muhammad Azhar Siddique and Zaka-ur-Rehman Awan for Petitioner.
• Masud Abid Naqvi, Hafiz Ansar ul Haq, Sibghat Ullah Naseer Khawer Khan, Muhammad Ejaz Jamal, Zair Sikandar Khan Burki and Mirza Viqas Rauf for Respondents, Respondents/Additional Advocates General in person.
• 2. These petitions express a common grievance against two orders dated 2-5-2013 passed by the Law and Parliamentary Affairs Department, Government of the Punjab: by one order, 13 Assistant Advocates General and by the other order 7 Additional Advocates General were "removed from office with immediate effect." It is submitted that prior to the aforenoted two impugned orders, there were 44 Assistant Advocates General and 21 Additional Advocates General holding posts in the office of the Advocate General. Punjab. The said impugned orders do not state any ground for removal from service of the aff cted law officers three of whom have filed petitions before the Court.
• 3. It is, firstly, alleged on behalf of the petitioners that their sudden removal from office casts an undue aspersion and stigma on their professional standing and conduct. Secondly, that the impugned orders of the petitioners' removal from office are whimsical and arbitrary for being selective without reference to any criteria in targeting the petitioners whilst retaining 14 Additional Advocates General and 31 Assistant Advocates General although they were similarly placed. Since no intelligible differentia distinguishes the law officers that have been retained in service from the others, including the petitioners, who have been removed from service, it is alleged that the impugned orders are discriminatory in effect. Thirdly, it is contended that the impugned orders have been passed by a caretaker government formed under Article 224(1A) of the Constitution. The functions of a caretaker government have been elaborated by the Hon'ble Supreme Court in Kh. Ahmad Tariq Rahim v. Federation of Pakistan and others (PLD 1992 SC 646) as under:--
• 5. Learned Advocate General Punjab explained his point of view in the matter on 9-5-2013 and thereafter, on 14-5-2013 the learned Senior Addl. A.G has further elaborated the stand of the provincial government. On their behalf it is argued that the appointment of law officers is made under the Law Department Manual, 1938. Paragraph 1.18(4) thereof is in the following terms:
• "An Additional Advocate General or an Assistant Advocate General shall hold office during the pleasure of the government and shall be liable to be removed from office at any time without notice."
• 6. It is emphasized that the appointment of the petitioners to their respective law offices does not create any vested right in the petitioners' favour. Their appointment is during the "pleasure of the government"; it may be terminated at any time without assigning any reason. For the said proposition of law, support is drawn from the view expressed by a learned Division Bench of this Court in Shafqat Mahmood Lodhi v. The Accountant General West Pakistan Lahore (PLD 1968 Lah. 786) and also by a learned Division Bench of the Peshawar High Court in Dr.Said Qayum v. Secretary, Education Peshawar and others (1998 PLC (C.S.) 1218). It is, secondly, emphasized that a law officer working in the office of the Advocate General is actually in a lawyer-client relationship with the Government of Punjab. Such relationship is exceptional in comparison to any other government employment because it is based on confidence which is a subjective matter. Therefore, the petitioners have no right whatsoever to expect loss of confidence to be justified by reasons given prior to their removal from office. The expression 'removal from office' used in the impugned notifications is not meant to cast any aspersion on the petitioners but is borrowed from the language of paragraph 1.18(4) of the Law Department Manual, 1938 for adopting the authorized mode of termination of employment of a law office.
• 7. The Court has been ably assisted by the learned counsel for the parties, namely, M/s Zaka-ur-Rehman Awan, Muhammad Azhar Siddique and Imtiaz Ahmad Kaifi, Advocates on the one hand and the learned Advocate General and learned Senior Addl. A:G. on the other hand. There is authority of the Hon'ble Supreme Court of Pakistan on the meaning of employment "at pleasure" of the State given in Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) which is reproduced as follows:
• "Much has changed since then. Pakistan now has a democratic Constitution which provides for the government of laws and not of men. It is for this reason that in our Constitution there remain few positions where the incumbents "hold office during the pleasure" of someone else based on broad discretion. In its undiluted form this convention exists only in Article 100(2), Article 101(3) and Article 140(3) which relate to the appointments of a Governor, the Attorney General and the Advocates General respectively. Similarly, such discretionary powers do not exist in those statutes which relate to autonomous regulatory bodies like OGRA."
• 9. However, from the manner in which the, petitioners have been removed from office, namely, by their individual selection whilst many other law officers have been retained in office creates differentiation by the respondents between two groups of law officers. As no reasons for the impugned action are given therefore a heavy burden is cast on the respondents to justify selective loss of confidence in the petitioners. Neither the learned Advocate General nor the learned Senior Addl. A.G. has tried to justify the impugned orders on their merits. These orders are defended purely on the doctrine of measure. Reading the impugned action in the context of, firstly, the justiciability of executive action to terminate an officer employed at pleasure and secondly, the limited mandate of a caretaker cabinet as interpreted in Kh. Ahmad Tariq Rahim v. F.O.P. and others (supra), the stand taken by the respondent government authorities is not satisfactory.
• 12. The petitioners whether Additional Advocates General or Assistant .Advocates General have a fundamental right under Article 25 of the Constitution as interpreted by the Hon'ble Supreme Court of Pakistan in Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), that identically placed persons must be treated identically. The difference between those Additional Advocates General and the Assistant Advocates General who have been removed from office as against those who have been retained in office must be based on intelligible criteria. As no such criteria has been shown to the Court, the classification adopted by the impugned action is arbitrary and violates the rule laid down under Article 25 of the Constitution.

Headnotes / Summary

Judgment & Decree