We hand down this detailed judgment and reasons in pursuance of our short order dated 31.3.2008.
2. The petitioner, in person, filed this writ petition whereby he has called in question the appointments of the respondents as Addl. Advocates General, Punjab and Assistant Advocates- General, Punjab. According to him, the impugned appointments were made in derogation of the rules on the subject. In this regard the petitioner referred to a Notification No, 8-19/93 dated 19th October, 1993 to be read with Articles 139 and 140 of the Constitution of Islamic Republic of Pakistan.
According to him, the expression ": determine" is significant and it must be construed objectively taking into account purpose of establishment of Constitutional Office of the Advocate General, Punjab. According to petitioner, the Constitution and Rules require prior consultation with the High Court for appointment of Advocate General, Addl. Advocates-General and Assistant Advocates- General. According to him, appointment must be made in public interest, indeed.
3. The learned Advocate General, Punjab on question of `consultation' has no serious disagreement with the petitioner. As a matter of fact, he submitted, that in many cases, appointments were made with prior consultation with the Hon'ble Chief Justice of the Lahore High Court. The learned Advocate General also expressed his views on "determination" of posts of Addl. Advocates-General and Assistant Advocates-General.
4. We have heard the petitioner in person and the learned Advocate-General, Punjab at length. We have also deliberated upon their respective contentions with due care.
5. The office of the Advocate General/Attorney General exists almost in all countries and Constitutions of the World irrespective of Presidential System or Parliamentary System of the Government. In England, office of the Attorney General is provided, whereas in Scotland office of the Advocate General is provided. In England, the Attorney General is always a member of the Cabinet appointed from the Members of the Parliament. The office of the Attorney General in England is a political office, he is appointed like any other Member of the Cabinet. However this practice was not followed in India when the office of Advocate General was introduced in India. Before the independence of the sub-continent, the office of the Advocate General was established under the Government of India Act, 1811 and the Government of India Act, 1858. The same office was provided under Section 114 of the Government of India Act, 1915 and under Section 16 of the Government of India Act, 1935. The office of the Advocate General was created for the whole United India as well as for the provinces separately. After partition, the Advocate General for the Federation, both in Pakistan and in India became Attorney General, whereas for the Provinces this office continued to be referred to as the Advocate General.
6. The purpose of creating this office is stated by BASU in his book which he referred to from the report of Joint Parliamentary Committee, on the Government of India Act, 1935, which reads as under:-- "It is not part of our intention to suggest that the office of the Advocate General should, like that of the law officers here, have a political side to it. Indeed, our main object is to secure for the Provincial Governments legal advice from an officer, not merely well qualified to tender such advice, but entirely free from trammels of political or party associations, whose "Salary would not be votable and who would retain his appointment for a recognized period of years, irrespective of the political fortunes of the government or governments with which may be associated during his tenure of office." (Constitution of India by Basu Vol-F, Page 5).
The above reference clearly manifests that the intention and the purpose of establishment of the office of Advocate General was to secure legal advice for the Provincial Government and it also shows that non votable salary and a recognized period of years of service was also guaranteed by the legislatures/jurists at the time of establishment/ introduction of the office of Advocate General.
The above intention stands reiterated in Article 140 of the present Constitution. Clause 2, reads as under:-- "It shall be duty of the Advocate General to give advice to the Provincial Government."
According to Mr. Justice (R) Fazal Karim, "he is a First Law Officer and his principal function is to provide independent legal advice to the Government and to represent the Government in Courts."
(Access to Justice in Pakistan, page-14). Another Constitutional requirement to create the office of the Advocate General is to provide advice to the Provincial Assembly. Article 111 of the Constitution of Pakistan gives right to the Advocate General to speak and otherwise take part in the proceedings of the Provincial Assembly or any Committee thereof which he may be named as a Member. The famous Indian Jurist Basu observed the above role in the following words:-- "but even though the makers of Constitution of India Act, 1935 departed from the English Model in divorcing the office of Advocate General from the Government of the day and the legislature, the need for the presence of the Advocate General in the legislature was, nevertheless, felt from the earliest times." (Constitution of India by BASU Vol-F)
7. The functions presently performed by the Advocate General may be summarized taking into consideration provisions of Articles 111 and 140 of the Constitution and some other legal instruments as under:-- "(i) The Advocate General tenders his advice on issues and matters which are referred to him by the Provincial Government or different departments of the Provincial Government;
(ii) The Advocate General represents a Provincial Government in cases wherein Provincial Government is party, in the Superior Courts of the country, including the Supreme Court of Pakistan;
(iii) The Advocate General assists the Superior Courts as a Law Officer in all cases of public importance, particularly, where, interpretation of Constitutional points is involved; (iv)The Advocate General also prosecutes contemnors in cases of contempt of Courts;
(v) The Advocate General protects public rights in cases of public nuisance and also protects public charities; and
(vi) The Advocate General also represents Provincial Government under Article 111 in the Provincial Assembly. As mentioned above, he has right to sit in the Provincial Assembly to participate in the proceedings of the Provincial Assembly and to address the Provincial Assembly to explain a Constitutional and legal point, he can also be appointed a member to any Committee of the Provincial Assembly. In fact, he has all the rights which an elected member may have except a right to vote.
Another very vital unwritten function of the Advocate General is to work as a bridge between the Provincial Government and the High Court. The Chief Justice of High Court has to perform several administrative functions besides his judicial functions. In this regard, a regular communication is required to deal with several matters.
8. The office of the Advocate General was established in the united Punjab Province, under paragraph 1.5 of the Punjab Law Department Manual, 1938. Under Act of 1935, the Governor of the Province was empowered to appoint the Advocate General in its discretion, however, alter the independence, the situation became different. Under Article 140 of the present Constitution and earlier Constitutions, the Advocate General is appointed by the Governor on the advice of the Chief Minister as contemplated under. Article 105 of the Constitution.
9. Under paragraph 1.18 of the Punjab Law Department Manual, appointment of Assistant to the Advocate General was provided. However, the nomenclature was changed and Assistant to the Advocate General was substituted with Assistant Advocate General. In addition to the above, vacancy for Additional Advocate General was also created. Both are required to perform their functions under the control of the Advocate General. The Punjab Government Service (Conduct)
Rules, 1966 were also made applicable to them.
10.Notification dated 19th October, 1993 provided that the Government may in consultation with Lahore High Court, Lahore appoint an Additional Advocate General or an Assistant Advocate General. The said Notification also provided that a person shall not be appointed as an Additional Advocate General unless he is the citizen of Pakistan, and is not less than 40 years of age or he is enrolled as an Advocate of Supreme Court of Pakistan, and has for a period not less than 10 years be an Advocate of the High Court and Supreme Court. The above Notification further provided that a person shall not be appointed as an Assistant Advocate General unless he is a citizen of Pakistan, and has not less than 35 years of age and for a period not less than 7 years be an Advocate of the High Court. In the subsequent Notifications to the above, the above conditions were never expressly amended.
11.According to the Hon'ble Supreme Court of Pakistan, office of the Assistant Advocate General is an office of profit and is included in the expression of Service of Pakistan. According to the Hon'ble Supreme Court, office of the Advocate General is different in the eyes of the law than the office of the Assistant Advocate General. The appointment of the Advocate General is a Constitutional appointment, whereas, the appointment of an Assistant Advocate General is made under the statute/rules. In our view, the same applies to the office of the Additional Advocate General. Both are appointed under paragraph 1.18 of the Punjab Law Department Manual, 1938. According to the above mentioned judgment of the Supreme Court:-- "Thus, pivotal question requiring consideration would be, whether or not the petitioner during his appointment as Assistant Advocate General was holding office of profit connecting with the affairs of State. Undisputedly, petitioner throughout his tenure of office had received salary and other benefits and attached to the post of Assistant Advocate General, Peshawar. Learned counsel attempted to argue that payment of salary, etc. was comparable to retainership from performing professional obligation, therefore, would not debar petitioner from contesting election. We do not find any force in this contention. Appointment of petitioner was against existing vacancy, of a permanent post having monitory benefits in the shape of salary and privileges of BPS-20. This is clearly an office of profit connected with the affairs of Province. The post of Assistant Advocate General cannot be equated with Advocate General which is a Constitutional appointment under Article 140 of the Constitution. Besides, Article 260 of the Constitution specifically grants protection by excluding said office from Service of Pakistan." (Muhammad Khurshid Khan V. Returning Officer, 1998 SCM R 425).
12. The above judgment of the Hon'ble Supreme Court of Pakistan clearly held that Additional Advocate General and Assistant Advocate General hold public offices and are paid from the public exchequer. Most of their functions are similar to the Advocate General under whose command and leadership they work. One of their major functions is to represent the Provincial Government in the Courts as well as to assist the Courts including the Supreme Court and the High Court. Thus, the Government, Courts and the people expect certain degree of competence and integrity from them.
The offices of the Advocate General and the Assistant Advocate General are extension of the Advocate General Office as it is evident from the reading of Paragraphs 1.5 and 1.18 of the Punjab Law Department Manual, 1938. We have already quoted Basu. According to him, the object of the Joint Parliamentary Committee deliberating on the Government of India Act, 1935 was to secure for the provincial Government legal advice from an officer not merely well qualified to tender such advice but entirely free from the trammels of the political or party associations. For the above reasons, the Committee had also ensured a handsome non votable salary and a tenure of recognized period of years irrespective of the political fortunes of the Government or Governments.
Though the circumstances have changed and in the changed circumstances, the Advocate General is not retained for a specified period. Normally, when a Government changes, an Advocate General is also changed. In several cases, the Advocate General is changed even during the tenure of the same Government. However, in India, we find examples where Advocate General retain his office during many Governments. For example, famous Jurist late, Seervi, remained Advocate General for the Province of Maharashtar (Bombay) continuously for 17 years. Mr. Moti Lal C.
Setalvad served as Attorney General of India continuously for 11 years. Since we have the similar Constitutional provisions relating to the office of the Advocate-General and also follow the Parliamentary System in both countries, a cue may be taken from the above two examples of tenure of Law Officers from the Indian jurisdiction.
13.According to Article 140 of the Constitution, 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. Thus, it is a Constitutional requirement that only such a person should be appointed as an Advocate General who is qualified to be appointed a Judge of the High Court.
According to the Hon'ble Supreme Court of Pakistan, the Chief Justice of Pakistan and the Chief Justice of the concerned High Court are the best persons to Judge whether a particular person is qualified to be appointed a judge of the High Court or not. (Al-Jehad Trust V. Federation of Pakistan, PLD 1996 SC 324). The expression "consultation" was considered by the Hon'ble Supreme Court in Al-Jehad Trust case in appointment of judges of High Court. Therefore, if seen in the above backdrop, the spirit of Article 140 of the Constitution requires that Chief Justice of High Court be consulted prior to making an appointment of the Advocate General. Likewise, it may be observed that provisions of Notification No, 819/93/3363, dated 19.10.1993 are in line with Article 140 of the Constitution and hence should be followed while making appointments of Additional Advocate General and Assistant Advocate General. All three offices are paid from the public exchequer and they are assigned very professional and sensitive assignments/functions (list of which is already enumerated above), which have implications/repercussions on the functioning of Courts, Government, as well as public at large.
14.According to the Hon'ble Supreme Court, as noted above, Assistant Advocate General, etc. hold office of profit having monitory benefits from the public exchequer. According to Basu, the office of the Advocate General is meant for providing sound professional advice to the. Provincial Government. All these considerations and reasons lead us to the conclusion that appointment of the Advocate General, Additional Advocate General and Assistant Advocate General must be made in all seriousness and in public interest disregarding personal and political considerations.
However, it may be added that requirement of the consultation under Article 140 of the Constitution and Paragraphs-1.5 & 1.18 of Punjab Law Department Manual, 1938 cannot be construed in the same manner as it is required in terms of Article 193 of the Constitution. Likewise, Article 140 shall be read and construed in conjunction with Article 105 of the Constitution.
15.Clause-3 of Article 140 of the Constitution provides that the Advocate General shall hold office during the pleasure of the Governor. In our view, the pleasure of the Governor shall be construed under the present circumstances as pleasure of the Chief Minister. The language of clause-3 is the same which was employed in the Government of India Act, 1935 which in the instant case needs to be interpreted under the present political circumstances and Constitutional scheme, particularly Article 105 of the Constitution. Similarly, we also hold that we have discussed in this case considerations for appointment only and not for the removal which can be considered on different premise.
16.In view of the above detailed discussion and consideration on different aspects of the subject in issue, we allow this writ petition with the following directions:--
(i) The Government of Punjab/Secretary Law, Parliamentary Affairs and Human Rights, will determine, in consultation with the Hon'ble Chief Justice/High Court, the posts of Addl. Advocates- General and Assistant Advocates-General in the office of Advocate General, Punjab taking into account the number of Judges of the Hon'ble Supreme Court, the number of Judges of the Lahore High Court; and other Courts, Tribunal etc. The fact that the prosecution department has already been separately established shall also be considered while determining the required number of Law Officers in the Advocate General Office. It is Further directed that once the number of required posts is fixed, it shall not be changed save following the same procedure.
(ii) In future the Governor of Punjab 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 with prior 'consultation' with the Chief Justice/High Court. Likewise, Addl. Advocates-General and Assistant Advocates-General shall also be appointed with prior consultation with the Chief Justice/High Court in addition to other qualifications/requirements provided in the Law Department-Manual (1938). Reported cases, conducted by the aspirants of the above officers shall be an important requirement.
(iii) No adverse order is being passed against the respondents; however, the appointments of the respondents, for validity of their appointments shall be examined in the light of above findings enshrined in sub-para (i) and (ii), within 40 days from to-date.