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.
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.
(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 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 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 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.
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 were convicted under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). He has referred to Articles 130 and 139(3) of the "Constitution" to contend that "Constitution" does not empower the Governor/Chief Minister to appoint Advisors to the Chief Minister/Government of Punjab and the authority to make such appointments is absent in the "Constitution". In this regard he has pointed out to Article 93 of the "Constitution", which states that the President of Pakistan may, on the advice of the Prime Minister, appoint not more than five Advisors. Learned counsel has lastly submitted that even Rules of Business, 1974 are subject to the "Constitution". He has relied upon the case of Hakim Khan v. Nazeer Ahmed Lughmani and others 1990 MLD 89.
Alamgir, Advocate, representing Sabah Sadiq, Kamil Ali Agha, Mian Abdul Sattar, Ch. Muhammad Siddique, Rahat Maqsood, Raja Muhammad Nasir, Malik Khalid Mehmood Waran, Hafiz Iqbal Ahmed Khan Khakwani, states that Sabah Sadiq was appointed as Chairperson of Social Services Board under the provision of Punjab Social Services Board (Amendment) Act, 2004 (Act XXII of 2004) with the powers of Advisor to the Chief Minister, Kamil Ali Agha, though appointed as Advisor but he resigned on 2-6-2006; Raja Muhammad Nasir was appointed as Advisor to Government of Punjab, vide notification dated 6-12-2005, but he did not assume the office; Ch. Muhammad Siddique and Rahat Maqsood Qadusi, were initially appointed as political assistants vide notification dated 27-12-2003, but they were, subsequently, notified as special assistants and now they are performing their duties as Advisors to Government of Punjab and Malik Khalid Mehmood Waran and Hafiz Muhammad Iqbal Khakwani, were appointed as Advisors to Chief Minister vide notification dated 19-5-2006. Alamgir has contended that Rules of Business, 1974 were validly framed by the Governor in exercise of powers under Article 139(3) of "Constitution" and Rule 6-A empowers Chief Minister Punjab to appoint any number of his Advisors and Special Assistants. He has further submitted that "service of Pakistan" as defined under Article 260 of the "Constitution" does not include Special Assistant to Chief Minister and Advisor to Chief Minister. He has also referred to Punjab Advisor's (Salary Allowances and Privileges) Ordinance 2002 and Punjab Special Assistant (Salary Allowances and Privileges) Ordinance 2002 and Article 63(b) of the "Constitution".
Shehzad Shaukat, Advocate, representing respondent No,2 (Mian Muhammad Munir), has submitted that office of Advisor to the Chief Minister and Government of Punjab is not a "public office", which term means an office which confers certain powers to a particular person, but Mian Muhammad Munir was appointed as Advisor to Government of Punjab to have his advice on certain special issues. He has further stated that some of the Advisors declined to receive any remuneration and a few of them are receiving salary from the public exchequer. He has relied upon the judgments reported as Munir Ahmad v. Returning Officer, Karachi and others (PLD 1966 Karachi 1), Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam (1989 MLD 1351) and Allah Ditta v.
Muhammad Munir and others (PLD 1966 Lahore 770). He has added that although Mian Muhammad Munir was convicted in contempt case yet his conviction does not debar him from holding the office of the Advisor to the Government of Punjab. His next contention is that Mian Muhammad Munir was appointed as arbitrator in a dispute between the petitioner and his brothers and as arbitration award went against him, therefore, the present petition is tainted with mala fide. He has relied upon the cases of Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), Dr. Azeem ur Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299) and Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan (PLD 1989 SC 166). He has lastly submitted that writ of quo warranto is not maintainable and that the petitioner lias no "locus standi" to file the present petition and that writ cannot be issued by this Court suo motu. He has referred to the judgments reported as Akhtar Abbas and others v.
Nayyar Hussain (1982 SCMR 549), Ali Muhammad through Legal Heirs and others v. Chief Settlement 'Commissioner and others (2001 SCMR 1822), State v. Tariq Aziz M.N.A and 6 others (2000 SCMR 751) and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969).
Tehseen Gardizi, Advocate, representing Makhdoom Ali Akbar and Makhdoom Iftikhar Hussain submitted that Chief Minister is the competent authority to appoint five Special Assistants in view of the provisions of Punjab Special Assistants (Salary, Allowance and Privileges) Ordinance 2002. He has added that no financial advantage was received by these two persons.
Munib Iqbal, Advocate on behalf of Farrukh Mehmood Shah submitted that his client was appointed as Media Advisor to the Government of Punjab, vide notification dated 8th March, 2006 and that he accepted the appointment in good faith. However, he admitted that Punjab Advisors (Salary, Allowance and Privileges) Ordinance, 2002 and Rules of Business 1974 are silent regarding the appointment of Advisors to the Government of Punjab.
Umer Zeshan, Advocate representing Dr. Javed Asghar and Dr. Faiza Javed, has supported the appointments of his clients as Advisors to the Government of Punjab. He has added that these persons are highly qualified and experts in their respective fields. He has further submitted that Dr. Asghar Javed has introduced the emergency ambulance services in Punjab Province while Dr. Faiza Javed is U.S. Based Certified Child Specialist and she has an immense knowledge of children's issues.
Kashif Nawaz, Advocate, on behalf of Dr. Zafar, while referring to Article 260 of the Constitution and section 3 of Punjab Special Assistant (Salary, Allowances and Privileges) Ordinance, 2002 has justified the appointment of Dr. Zafar and vehemently urged that his client has introduced new concepts of rural cottage industries, which would generate three million jobs in the Punjab Province.
Ahsan Bhoon, Advocate for Shaukat Ali Laleeka, has contended that no allegations have been levelled against Advisors in the constitutional petition and appointments of all the Advisors to Chief Minister/Government of Punjab have not been challenged. He has referred to Articles 129,130, 137 and 139(3) of the "Constitution" to contend that cabinet ministers act in aid and advice the Governor in exercise of his functions and it includes the Advisors. He has submitted that all the executive actions and administrative affairs are to be taken in the name of Governor and validity of such orders cannot be called in question before any court of law. He has further submitted that Rules of Business 1974 were framed under Article 139(3) of the "Constitution" and that this Court has no jurisdiction to entertain this petition. His next Contention is that appointments of Advisors to Chief Minister/Government of Punjab were made under Rule 6-A of Rules of Business, 1974, which authorizes the competent authority to appoint any number of Advisors and it is the prerogative of the competent authority. He referred Article 248 of the "Constitution" to contend that the said Article gives protection to the acts of the Chief Minister. He has further submitted that the petitioner is not an "aggrieved person" as none of his fundamental rights was infringed rather this litigation is in violation of the fundamental rights. He has referred to Article 260 to contend that Chief Minister can appoint Advisors and that Advisors are excluded from the definition of the word "service of Pakistan".
Rana Zahid, Advocate, representing Rana Ijaz Ahmed, Asghar Hayat Kalyar, Sadia Mobashar and Fawad Hussain, stated that none of the paras of the petition relate to his four clients. He has further submitted that Article 139(2) of the "Constitution" is to be read with Article 129 and that Rule 6-A of Rules and Business, 1974 authorizes the Governor/Chief Minister to appoint special assistants, who are experts and specialists in their respective fields. He has referred to Articles 93 and 57 of the "Constitution". He has added that writ petition is not maintainable.
At initial stages of the case Aftab Iqbal Chaudhry, learned Advocate-General projected Punjab Government's viewpoint, however, now Rizwan Mushtaq, Assistant Advocate-General has thoroughly argued the matter. He has submitted that (i) this writ petition is not maintainable having been filed by an incompetent person as the present petition does not fulfil the requirements and preconditions, which are necessary for entertaining a writ of quo warranto. Reliance has been placed on A. Ramachandran v. A. Alagiri-swami, Govt. Pleader High Court, Madras and another(AIR 1961 Madras 450) and Amarendra Chandra v. Narendra Kumar Basu and others (AIR 1953 Calcutta 114) (ii) Advisors are not holding public office, he has cited Allah Ditta v. Muhammad Munir and others (PLD 1966 Lahore. 770); (iii) the appointments of Advisors by Government is matter of policy, which cannot be subjected to judicial review as it is within the exclusive domain of the executive and legislature, he relied upon Nazakat Abbas and 20 others v. Punjab Public Service Commission through Secretary and another (2006 PLC (CS) 221); (iv) Advisors to the Government of Punjab are not Advisors to any particular department but particular functions have been assigned to them;
(v) Advisors to the Government of Punjab are in fact Advisors to Chief Minister and thus they could be appointed under Rule 6-A of Rules of Business; (vi) any number of Advisors could be appointed by the Chief Minister in exercise of powers under Rule 6-A of Rules of Business, which were framed under Article 139(3) of the "Constitution"; Scope of inquiry should be limited to respondent No,2 and it should not be extended in exercise of suo motu powers. He has added that although there is no provision in the "Constitution" for the appointment of ambassadors yet they are appointed by the Federal Government, because foreign affair is the subject, on which the Federal Government can legislate and that an Executive Authority of a Province has the powers to appoint Advisor. However, he concedes that neither the "Constitution" nor Rules of Business empowers the Chief Minister Punjab to appoint Advisor to Government of Punjab. He has further relied upon following judgments:--
(i) Messrs Gadoon Textile Mills Ltd. And another v. Chairman, Area Electricity Board. WAPDA (PESCO), Peshawar and others (PLD 2005 SC 430)
(ii) Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549 at page 550).
(iii) Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 SC 530).
(iv) Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582).
(v) Messrs V.N. Lakhani & Company v. M.V. Lakatoi Express and 2 others (PLD 1994 SC 894)
Learned Law Officer has furnished following details and 'information:-
(i) Total Members of Punjab Assembly 371
(ii) Members of the ruling party 268
(iii) Provincial Ministers 39
(iv) Parliamentary Secretaries 59
(v) Advisors to Government of Punjab 19
(vi) Advisors of Chief, Minister 6 (vii)Special Assistants to Chief Minister 4
15. Firstly coming to the objection, raised by the majority of the learned counsel that since writ petition is in nature of quo warranto, therefore, it is incompetent and not maintainable. The question arises as to what is the nature and form of this petition and whether the present petition is a writ of quo warranto or not. In deciding the said question, one has to see the prayer made by the petitioner in the original constitutional petition and the amended petition, which reads as follows:-- Original Petition.
"In view of the above-mentioned submissions it is most respectfully prayed that the writ petition of the petitioner may please be accepted and respondent No,1 may be directed to withdraw the Notification, No, SO (CAB.H2-2/2003 dated 13th November, 2004 forthwith and the respondent No,2 be removed from the post of Advisor to the Government of Punjab.
Any other relief, which this Honourable Court deems fit may also be awarded."
Amended Petition "In view of the above-mentioned submissions it is most respectfully prayed that the writ petition of the petitioner may please be accepted and respondent No,1 may be directed to withdraw the Notific4tion No, SO(CAB II) 2-2-2003 dated 30th November, 2004 and Notification No, SO (CAB.II) 2- 3/03 (A) dated 15-3-2005 forthwith and the respondent No,2 be removed from the post of Advisor to the Government of Punjab.
Any other relief, which this Honourable Court deems fit may also be awarded."
Article 199(1)(b)(ii) of the "Constitution", which deals with the writ of quo warranto, is reproduced below:-- "Article 199. Jurisdiction of High Court,-(1)............... (a) ................................................... (i) ................................................... (b) .................................................. (i) .................................................. (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
It is evident from the prayer made by the petitioner, reproduced above, that the petitioner did not file the writ petition requiring Mian Muhammad Munir to show under what authority of law he claims to hold office of Advisor-ship rather the prayer of the petitioner is that Government of Punjab may be directed to withdraw notification and remove respondent No,2 from the post of advisor-ship. Placing the prayer made in the petition in juxta-position with Article 199(1)(b)(ii) of the "Constitution", it is manifestly clear that the writ petition does not fall within the purview and scope of the said Article and thus it is not in the nature of quo warranto. The objection raised by the learned counsel is without any substance, thus repelled.
Even if it be taken that the present petition is in the form of quo warranto, it could not be held that it is incompetent as the petitioner is not an "aggrieved person". Honourable Supreme Court of Pakistan in the case reported as Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299) has held as under:-- ..... There is no cavil with the proposition that in respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub-clause(a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the constitutional jurisdiction by way of writ of quo warrnto against usurpation of public office by a person without having any lawful authority."
It has been held in Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 and Munir Ahmad v. Retuning Officer, Karachi and others PLD 1966 Kar. 1 that under Article 98(2)(b) any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority.
In this regard, it would be appropriate to reproduce Article 199(1)(a) of the "Constitution", which reads as follows:- "Article 199, Jurisdiction of High Court.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provide by law:--
(a) on the application of any aggrieved party, make an order:-
(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do, or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect."
Prayer clause of the petitioner shows that the petitioner has sought two reliefs in the petition, one directing Government of Punjab to withdraw notification and secondly respondent No,2 be removed from the post of Advisor to Government of Punjab. Combined reading of reliefs claimed by the petitioner and Article 199(1)(a)(i) and (ii) of the "Constitution", it is clear that the present petition falls under Article 199(1)(a)(i) and (ii) of the "Constitution". The petition in hand is competent and maintainable.
16. Reverting to the question of "locus standi" of the petitioner and as to whether he is an "aggrieved person" within the contemplation of law. The petitioner is a prayer leader, respectable citizen of Islamic Republic of Pakistan and a member of public, who enjoys all the fundamental rights enshrined in the "Constitution". He, as a consciousness person and law-abiding citizen, is bound to be concerned and worried about the working of the Provincial Government and the manner in which Provincial Government is being run and appointments to the higher posts are being made.
To my mind, it is the duty of every citizen and member of public, whether he is personally aggrieved or not, to highlight and raise voice qua illegal and unconstitutional acts of Provincial Governments.
A citizen has a right to agitate before the Superior Courts of this Country that Government exchequer and public money is being spent on illegal appointments and in a recklessness manner and in violation of existing laws. Similarly, one is within his right to see that appointments to the higher posts in the Country are not being made in violation of the "Constitution" and existing laws. It has been held by the Honourable Supreme Court of Pakistan in the case reported as "Al-Jehad Trust through Raeesul Mujahideen Habib-ulWahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 that not only practising Advocate but even a member of the public is entitled to see that three limbs of the State act not in violation of any provision of "Constitution", which affect the public at large. In this regard a portion of para. 14 of the said judgment is reproduced below:-- "I am inclined to hold that not only a practicing Advocate but even a member of the public is entitled to see that the three limbs of the State, namely the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large "
Although said principle of law was laid down by the Honourable apex Court of the Country with reference to Article 184(3) of the, "Constitution", yet, to my mind , the same principle is equally applicable in the factor and circumstances of the present case. The petitioner, as noted above, as citizen of Pakistan and member of the public, is entitled to see that the Federal and Provincial Governments of Islamic Republic of Pakistan are run according to the "Constitution" and existing laws, of the Country and three limbs of the State act not in violation of any provision of the "Constitution". The petitioner in the present state of affairs has courage to come forward to unveil the unconstitutional and unlawful acts of the Punjab Government. I feel that citizens of Pakistan and members of public must be aggrieved by illegal and unconstitutional acts of the Punjab Government, which has appointed Advisors to the Government of Punjab without having any backing oflaw and is incurring millions and millions on the salary and perks of these Advisors. It cannot be ruled out that majority of the citizens must be aggrieved by illegal and unconstitutional acts of the Punjab Government of appointment of Advisors, but unfortunately, none of them has come forward before the Court of law to highlight the exercise of unfettered powers of the Provincial Government. Rather courage of the petitioner should be appreciated, who after spending time and hard earned money has Come forward to state that the Punjab Government has appointed Advisors without any lawful authority, than to non-suit him on mere technicalities. In view of whereof, I am of the considered opinion, that the petitioner has "locus standi" to file the petition and can be termed as "aggrieved person" within the contemplation of law.
17. Another objection has been raised that as the original petition was filed only against Mian Muhammad Munir therefore, this Court cannot decide the questions of law of highest importance and is debarred I from examining the notifications for the appointment of the Advisors, who were not arrayed as respondents in the petition. The said contention on the face of it is misconceived. It may be noted that this Court admitted the constitutional petition, on 16-3-2006, for regular hearing on the grounds that Mian Muhammad Munir could not be appointed as Advisor, as he was convicted by the Honourable Supreme Court of Pakistan and that none of the provisions of the "Constitution" empowers the Provincial Government/Chief Minister to appoint Advisors to the Government of Punjab. During the pendency of proceedings it was brought to the notice of this Court that Akhtar Rasul is also one of the convicted by the Honourable Supreme Court of Pakistan and his case is at par with Mian Muhammad Munir, therefore, notification of his appointment was also suspended. This Court, after finding that important questions of law in the case are involved issued notices to all the Advisors, who, pursuant thereto and proclamation published in the newspapers, entered appearance through their learned counsel, who argued the matter at length.
Learned Advocate-General/Addl. Advocate-General Punjab had been participating in the proceedings from the very J inception therefore, no formal notice was issued to the learned Advocates-General. It may be noted here that as questions of law do not concern the Federal Government, therefore, no notice was issued to learned Attorney-General of Pakistan as per terms of Order XXVII-A, C.P.C. I find support from the provisions of Order XXVII-A, Rule 1, C.P.C., which is to the following effect:-- "I. Notice to the Advocate-General.-In any suit in which it appears to the Court that (any substantial question as to the interpretation of constitutional law) is involved, the Courts shall not proceed to determine the question until after notice has been given to the (Attorney-General for Pakistan) if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government."
In such like matters, this Court, in exercise of its constitutional jurisdiction, while examining the provisions of the "Constitution" and other provisions of law has the power to declare that any act done by a *person performing functions in connection with the affairs of the Federation, a Provincial or a local authority has been done or taken without lawful authority and is of no legal effect. To my mind, in such like cases, this Court is not debarred from deciding the important questions of law, which is the prerogative and duty of the superior Courts in Pakistan. It would be relevant to reproduce a portion of para. 13 of the judgment of Al-Jehad Trust (ibid) which reads as follows:-- It is held by this Court in the case of Fazlul Qauder Chowdhry and others v. Muhammad Abdul Hague PLD 1963 SC 486 that the interpretation of the Constitution is the prerogative as well as. The duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. It is further held that cases of conflict between the supreme law of the Constitution an enactment might come for adjudication before the Courts and in such cases, it would be plain duty of the superior Courts, as its preservers, protectors and defenders, to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provisions. The power of judicial review therefore must exit in Courts of the country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country."
In view of the afore stated principle of law, this Court is under legal and constitutional obligation to decide such important questions of law regarding provisions of the "Constitution" and other laws and this sacred duty cannot be allowed to be sacrificed at the altar of mere technical objections, such like "locus standi" or "aggrieved person" or incompetency of the petition. I am of the view that powers of this Court to see, as to whether three organs of the State act within the orbit of the "Constitution" and other laws of the country cannot be curtailed and circumvented under any circumstances, rather exercise of such jurisdiction would lend support to the independence of judiciary. Additionally as noted above, notices were issued to all the Advisors/Special Assistants through ordinary process by proclamation in the newspapers. Pursuant thereto, all the Advisors/ Special Assistants were represented through their learned counsel, who have been heard at considerable length, thus, it cannot be argued that they have been condemned unheard.
18. Article 93(1) of the "Constitution" envisages that the President may, on the advice of the Prime Minister, appoint not more than five advisors; Article 93(2) states that provision of Article 57 of the "Constitution" shall apply to Advisors and Article 57 of the "Constitution" provides that the Prime Minister, Federal Minister, Minister of State and the Attorney-General shall have the right to speak and otherwise take part in the proceedings of either Houses, but shall not be entitled to vote. In the above perspective, it can safely be held that even the President of the Country, who enjoys vast powers under the "Constitution" as compared to Chief Minister of a Province, has no powers under the "Constitution" to appoint any Special Assistant or Advisor to Government of Pakistan, except to appoint not more than five Advisors and that too on the advice of the Prime Minster. Next provision, which finds mention in the "Constitution" about the Advisor to the Chief Minister, is Article 260, which, inter alia, defines the words "Service of Pakistan" which does not include the Advisor and Special Assistant to Chief Minister. None of the other provisions of the "Constitution", except hereinbefore mentioned, either deal with the Advisor appointed by the President or/and Advisor/Special Assistant to the Chief Minister of a Province. It appears appropriate to reproduce Articles 93, 57 and 260 of the "Constitution" of Islamic Republic of Pakistan, which read as follows:-- "93. Advisors.-(1) The President may on the advice of the Prime Minister, appoint not more than five Advisors, on such terms and conditions as he may determine
(2) The provisions of Article 57 shall also apply to an Advisor."
"57. Right to speak in (Majlis-e-Shoora (Parliament).-The Prime Minister, a Federal Minister, a Minister of State and the Attorney General shall have the right to speak and otherwise take part in the proceedings of either House, or a joint sitting or any committee thereof, of which he may be named a member but shall not by virtue of this Article be entitled to vote."
260. definitions.-(1) "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 but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, (Attorney-General, (Advocate-General), Parliamentary Secretary) or (Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to Chief Minister, Advisor to a Chief Minister) or member of a House or a Provincial assembly.).
(Underlining is mine.).
It has been admitted by all the learned counsel including the learned Law Officer that the "Constitution" does not empower the Chief Minister to appoint Advisors/Special Assistants to the Chief Minister or/and Advisors to the Government of Punjab. It flows from the above narrative, that the "Constitution" does not empower the Chief Minister of a Province to appoint his Advisors or Special Assistants or /and advisors to the Government of Punjab.
19. Article 139(3) of the "Constitution", reproduced below, empowers the Governor of a Province to make rules for the allocation and transaction of the business of the Provincial Government:-- "139. Conduct of business of Provincial Government.- (1)...................
(2)...................
(3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government."
It flows from bare reading of Article 139(3) of the "Constitution" that the Governor has been empowered to make rules but he could make only those rules, which are for the allocation and transaction of the business of the Provincial Government. Governor of Punjab in exercise of powers under Article 139(3) of the "Constitution" made the rules known as "The Punjab Government Rules of Business, 1974". (Rules of Business) Rule 6-A of Rules of Business was added vide Notification No,CAB-1/II-46/85 dated 8th December, 1988. Said Rule 6-A provides that Advisors and Special Assistants to the Chief Minister shall be appointed from time to time and they shall hold their respective offices at the pleasure of the Chief Minister. Rule 6-A, ibid, reads as follows:-- "6-A. Advisors and Special Assistants: There shall be Advisors and Special Assistants to the Chief Minister to be appointed by him for the performance of such duties and functions as may be specified from time to time. They shall hold either respective office during the pleasure of the Chief Minister who shall also determine the terms and conditions of their appointment."
Under Rule 6-A, ibid, the Chief Minister has been given powers to appoint Advisors and Special Assistants to the Chief Minister, however, he was not authorized even under this Rule to appoint Advisors to the Government of Punjab. It may be noted that words "Advisors" and "Special Assistants" have not been defined in Rule 2 of the Rules of Business.
Section 2(a) of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVII of 2002) defines the word "Advisor", to mean "a person appointed as Advisor to the Chief Minister under this Ordinance". Section 3 of the said Ordinance states that the Chief Minister may appoint not more than five Advisors, who shall hold office during the pleasure of the Chief Minister. Section 3 of the said Ordinance is reproduced as under:-- "S.3 Appointment and term of office.-(1) The Chief Minister may appoint not more than five Advisors who shall hold office during the pleasure of the Chief Minister. (Underlining is mine)
(2) An Advisor shall perform such functions as may be assigned to him by the Chief Minister."
Section 2 (g) of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinate, 2002 (Punjab Ordinance No, LXXVI of 2002) gives the definition of the word "Special Assistant", to mean "a person appointed as Special Assistant to the Chief Minister under this Ordinance". Section 3 of later Ordinance provides that the Chief Minister may appoint not more than five Special Assistants.
Section 3 of the- Ordinance is reproduced below:- "S.3 Appointment and term of office.-(1) The Chief Minister may appoint not more than five Special Assistants who shall hold office during the pleasure of the Chief Minister.
(2) A Special Assistant shall perform such functions as may be assigned to him by the Chief Minister." (Underlining is mine)
From the joint reading of the afore noted provisions of "Constitution", Rule 6-A of Rules of Business and Section 3 of the afore noted two Ordinances, it is manifestly clear that neither the Chief Minister nor the Governor of Punjab has been empowered to appoint Advisors to the Government of Punjab. It is important to note here that initially, when the Rules of Business were framed, which were enforced with effect from, first June 1974, there was no provision even for the appointment of the Advisors/Special Assistants to Chief Minister. It was subsequently, through the insertion of Rule 6-A, that Punjab Chief Minister was conferred with the powers to appoint Advisors/Special Assistants to the Chief Minister. Even Rule 6-A, which has heavily been relied upon by the learned counsel for Advisors and Law Officer, does not empower the Chief Minister to appoint Advisors to the Government of Punjab. Rule 6-A does not provide any number of Advisors/Special Assistants to the Chief Minister to be appointed by him. It appears that in order to overcome the said anomaly and unrestricted powers, Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVI of 2002), were enforced, in order to restrict, fetter and clip the omnipotent powers of Chief Minister to appoint any number of Advisors/Special Assistants to the Chief Minister. As noted above, Rule 6-A of Rules of Business does not provide any number of Advisors/Special Assistants to the Chief Minister and that might be the reason why the law makers thought it to promulgate the aforesaid two Ordinances, in order to clinch the unfettered powers of the Chief Minister thereby curtailing the powers of the Chief Minister to appoint not more than five Advisors/Special Assistants. Thus, 3ection 3 of the aforesaid two Ordinances have limited the powers of the Chief Minister to appoint Advisors/Special Assistants. T It appears that the said Ordinances were enforced in order to restrict the powers of Chief Minister to appoint any number of Advisors/Special Assistants to the Chief Minister, as provided under Rule 6-A of the Rules of Business. Objective and driving force behind the Ordinances appear to be that powers of the Chief Minister to appoint his Advisors/Special Assistants should be in consonance and harmonize with U Article 93 of the "Constitution", which empowers the President to appoint not more than five Advisors. Apart from the afore said provisions of law, the learned counsel representing the Advisors and the learned Law Officer could not point out any other provision of law, which empowers the Chief Minister of the Province to appoint Advisors to the Government of Punjab. Chief Minister of Punjab cannot be allowed to exercise the powers, which do not vest with him and have not been conferred upon him either under the "Constitution" or any existing law. It cannot be conceived that a Chief Minister of a Province can exercise more and extra powers than the President of Pakistan, which if V allowed would be against the letter and spirit of the "Constitution". Learned Law Officer when confronted and asked to explain as to how in view of Rule 6-A of Rules of Business read with section 3 of Ordinance No, LXXVII of 2002 and Ordinance No, LXXVI of 2002, the Chief Minister can appoint Advisors to the Government of Punjab, he has fallen back upon Rule 6-A of Rules of Business to state that in fact the word "Advisor" used in Rule 6-A means to include Advisors to the Government of Punjab as well, however, he could not substantiate his argument with reference to any provision of law or case law on the subject. The said argument, to say the least, on the face of it is misconceived and stands falsified from the bare reading of Rule 6-A, ibid which unequivocally states that there shall be Advisors and Special Assistants to the Chief Minister to be appointed by him. Rules of Business do not define the words, "Advisors to Chief Minister", "Advisors to Government of Punjab" and "Special Assistants to the Chief Minister". Even according to definition of "Advisor", given under section2(a) of Ordinance No, LXXVII of 2002, it is stated in clear terms that Advisor means a person appointed as Advisor to Chief Minister. It is not, however, understandable as to how and from which provision of law the learned. Law Officerhas inferred that the words "Advisors to Government of Punjab" are included in the terms "Advisors and Special Assistants to the Chief Minister" used in Rule 6-A ibid. The learned Law Officer has taken another stand that the Advisors to the Government of Punjab are, in fact, the Advisors to the Chief Minister, as their appointing authority is the Chief Minister, their respective offices are at the pleasure of the Chief Minister and they perform the functions assigned to them by the Chief Minister. Even this summersault is of no avail to the respondent No,1, as it is not supported by any law. The term "Advisors to the Government of Punjab" is alien to the prevalent laws as none of the laws, as noted above, even mention about the appointment of X the Advisors to the Government of Punjab. The said argument cannot be accepted on two grounds, firstly the learned Law Officer could not put forth any law on the subject in order to substantiate his contention and secondly if this contention is accepted, it goes contrary to Rule 6-A of Rules of Business, 1974 and section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVI of 2002). It appears that the Chief Minister being conscious of the legal position that he has no jurisdiction to appoint more than five Advisors/Special Assistants to him under the two Ordinances has, in his own wisdom, evolved a new term introduced as "Advisors to Government of Punjab", in order to accommodate, oblige and fit in certain influential persons, his favorites, blue-eyed boys and the persons who have contacts in Governmental hierarchy. It is interesting to note that even one of the learned counsel admitted that his client has been appointed only because of his contacts with high ups in the Punjab Government. It cannot be comprehended even for a moment that Chief Minister of Punjab is oblivious of the provisions of the "Constitution" or other laws, as the learned Advocate-General, who is the principal Law Officer of the Province is obliged and duty bound under the law to give advice to the Provincial Government upon legal matters per force of Article 140(2) of the "Constitution". It seems to me that the Chief Minister of Punjab after finding him handicapped in view of sections 3 of the two Ordinances has find a novel way, though illegal and unconstitutional, to appoint certain persons of his own choice on the higher posts with salary and perks under the nomenclature of unprecedented term "Advisors to the Government of Punjab". It may be noted that even definition of "Service of Pakistan". In Article 260 of the "Constitution", relied upon by majority of the learned counsel does not find mention about "Advisors to the Government of Punjab".
20. In the above perspective, I am of the considered view that the Chief Minister had no powers, authority and jurisdiction to appoint Advisors to the Government of Punjab, this is clear case of misuse of powers and authority and those appointments were made in excess of jurisdiction. The purported exercise of jurisdiction to appoint Advisors to the Government of Punjab never vested with the Chief Minister and thus all the appointments are held to be illegal, without jurisdiction, unconstitutional 'and lacks the legal backing.
21. In view of the above, it is held that neither the "Constitution" 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 the Government of Punjab, therefore, the appointment of all the Advisors to the Government of Punjab is held to be illegal and without jurisdiction, thus, notifications of their appointments are equally without jurisdiction and hereby quashed.
22. There is another aspect of the case. In answer to a query raised by this Court, it has been informed that since appointments of these advisors, Government of Punjab, has incurred millions of rupees on the salary and perks of the Advisors. Public and tax payers money cannot be allowed to be swa llowed like that by the persons who were unauthorized appointed. As all the appointments of Advisors to the Government of Punjab have been held to be illegal and unconstitutional and their appointments from the very inception were without jurisdiction, therefore, the Advisors to Government of Punjab had no right to receive the salary and enjoy the perks from the Government exchequer and out of public money. However, I have refrained myself from passing any order for the repatriation/ reimbursement of the amounts, so received by the Advisors to the Government of Punjab.
23. Now coming to the next question, as to whether Chief Minister is competent and empowered to appoint Advisors and Special Assistants to Chief Minister. Article 139(3) of the "Constitution" empowers the Governor of the Province to make rules for the allocation and transaction of the business of the Provincial Government. The Governor of Punjab in exercise of the said powers made Rules of Business. Subsequently Rule 6-A was added to the Rules of Business vide notification dated 8-8-1988. Next question arises as to whether Rule 6-A is for the "allocation and transaction of the business of the Provincial Government". To my mind, the power to appoint Advisors/Special Assistants to Chief Minister; of course, subject to the provisions and limitations of section 3 of _Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002, is for the "allocation and transaction of the business of the Provincial Government". In view whereof, I am of the view that the Rules of Business and insertion of Rule 6-A in the Rules of Business were validly made by the Governor of the Punjab in exercise of the constitutional powers.
24. Rule 6-A of the Rules of Business provides that there shall be Advisors and Special Assistants to the Chief Minister to be appointed by him. Section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 provides that the Chief Minister may appoint not more than five Advisors. It is abundantly clear from the joint reading of Rule 6-A of the Rules of Business and section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 that Chief Minister is competent and empowered to appoint not more than five Advisors to the Chief Minister.
Similarly combined reading of Rule 6-A ibid, and section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 leads to the conclusion that Chief Minister of Punjab has the powers to appoint his Special Assistants but not more than five.
25. In view.whereof, it is held that the Chief Minister of Punjab, in exercise of his powers under Rule 6-A of the Rules of Business, 1974 read with section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVII of 2002) and section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No, LXXVI of 2002), is within his legal authority and is competent to appoint not more than five Advisors and five Special Assistants to the Chief Minister. It is further held that the appointments of five Advisors and five Special Assistants to the Chief Minister are legal, within the competence and legal authority of the Chief Minister and if any Advisors/Special Assistants are appointed beyond that number that appointment will be deemed to be illegal and without jurisdiction.
26. Now coming to the cases of Mian Muhammad Munir and Akhtar Rasul. These persons were appointed as Advisors to the Government of Punjab despite the fact that they were convicted by the Honourable Supreme Court of Pakistan. In the preceding paras. After exhaustively discussing the entire law on the subject, it has been held that the Chief Minister/Governor of Punjab has no jurisdiction and legal authority to appoint Advisor to the Government of Punjab. On this ground notifications of their appointments as Advisors to Government of Punjab are held to be without jurisdiction, and without lawful authority and quashed.
27 Secondly, there is another important aspect of the matter. Mian Muhammad Munir and Akhtar Rasul were convicted by the Honourable Supreme Court, of Pakistan for committing act of rowdies in the Supreme Court building in the case of reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969. It appears appropriate to reproduce paras. 3 ("15") and 50 of the judgment, which reads as follows:-- 3(" 15"). Having heard the arguments on behalf of the parties we have come to the conclusion that respondent Tariq Aziz, Mian Muhammad Munir, Ch. Tanvir Ahmed Khan, Akhtar Rasul, Akhtar Mehmood Shahbaz Goshi and Sardar Muhammad Nasim Khan, who were a part of the crowd people who had gathered in and around this Court in the morning of 28th November, 1997, were involved in acts of rowdyism including raising slogans and display of banners against the judiciary with the intention of bringing the authority of this Court into disrespect/disrepute and/or to lower its authority and/or to disturb the order or decorum of the Court, and by their actions they have committed contempt of this Court and rendered themselves liable to punishment under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with sections 3 and 4 of the Contempt of Court Act, 1976."
50. In view of the above circumstances, we find that the respondents, namely, Tariq Aziz, Mian Muhammad Munir, Ch. Tanvir Ahmed Khan, Akhtar Rasul, Akhtar Mehmood, Shahbaz Goshi and Sardar Muhammad Nasim Khan, are guilty of committing contempt of this Court. We accordingly convict them under Article 204 of the Constitution of the Islamic Republic of Pakistan read with sections 3 and 4 of the Contempt of Court Act, 1976 and sentenced them to undergo simple imprisonment for one month each and a fine of Rs,5000 each or in default thereof to suffer simple imprisonment for a further period of one month."
It is evident from the above narrative, that the honourable Apex Court of the Country, after finding that the petitioners along with other persons are guilty for committing of contempt of Court, convicted them under Article 204 of the "Constitution" and sentenced them to undergo simple imprisonment for one month and fine of Rs,5000 each It is astonishing and ironical that despite the conviction of these persons by the Honourable Apex Court of the Country, the Chief Minister in own wisdom deem it fit to appoint these persons as Advisors to the Government of Punjab though he had otherwise no powers to appoint Advisors to Government of Punjab. It cannot be conceived even for a moment that the persons who were found guilty by the Honourable Supreme Court of Pakistan and that too in an offence for creating rowdyism and storming the Supreme Court building in order to take into custody judges, could be appointed advisors to Government of Punjab. To my mind, appointments of these two persons were made in complete derogation, disrespect, defiance and in violation of the verdict of the Honourable Supreme Court of Pakistan. It cannot be said that their appointing authority was not aware either about the judgment of the Honourable Supreme Court or qua the conviction of these two persons or its legal implications and repercussion. It is unfortunate that no Government/State functionary ever took notice of the appointments of these persons as Advisors to the Government of Punjab. Even the Bureaucracy, which is presumed to be the cream of the nation, ignored and acquiesced over these appointments. To my mind, the then Chief Secretary Punjab before issuing notifications of appointments of these persons was duty bound to bring these facts to the notice of Chief Minister and apprised him about the legal complications. The Chief Secretary could have consulted the principal Law Officer of Province . Although a portion of the judgment by the Honourable Supreme Court of Pakistan, reported as Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development Lahore and 2 others PLD 1995 SC 530 has been reproduced in para. 9 above, yet here it appears appropriate to reproduce the said portion of the judgment, even at the cost of repetition, which is very much relevant in the present context : 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 representatives 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........
28. This case of committing contempt of Honourable Supreme Court cannot be equated with an ordinary case of contempt as the contempt committed by these two persons was of highest magnitude. These two persons along with mob were involved in acts of rowdyism including raising slogans and display of banners against the judiciary. It has been held by the Honourable Supreme Court of Pakistan while convicting these persons that the intention of these persons was to bring the authority of Supreme Court into disrespect/disrepute and to lower its integrity. The appointment of these two persons on the post of advisor ship is in complete derogation of the findings of the Honourable Supreme Court of Pakistan. On this count too their notifications are liable to be annulled. In view whereof, on both the above counts, notifications of the appointment of Mian Muhammad Munir and Akhtar Rasul, as Advisors to Government of Punjab are without jurisdiction, illegal and without lawful authority and these two persons are not eligible to be appointed to any public office or to any post of Provincial of Federation of Pakistan.