' SH. AZMAT SAEED, J.---The captioned Constitutional Petition has been filed by Mr.Aurangzeb Shafi Barki Secretary Finance of the Pakistan People's Party Punjab, hereinafter to be referred as the petitioner, to assail the legality of the Notification dated 6-12-2008, through which respondent No, 5 has been appointed as the Chairman of the Punjab Service Tribunal.
2. Brief facts necessary for the adjudication of the lis at hand are that office of the Chairman of the Punjab Service Tribunal fell vacant, and on 3-11-2008 a Summary was initiated by the Secretary to the Chief Minister Punjab recommending the appointment of respondent No, 5 (Justice (Rtd.)
Muhammad Arshad Jehangir) as the Chairman of the Punjab Service Tribunal. While the said Summary was still in the office of the Governor of Punjab, (Mr.Salman Taseer), he proceeded abroad on leave, whereafter, respondent No,6 (Rana Muhammad Iqbal Khan), Speaker of the Provincial Assembly (Punjab) was appointed as the Acting Governor vide the Commission of Appointment issued by the President of Pakistan, and in pursuance whereof, respondent No,6 took oath of the office of the Acting Governor on 6-12-2008. That on 6-12-2008 the impugned Notification was issued appointing respondent No, 5 as the Chairman of the Punjab Service Tribunal by the Acting Governor, respondent No,6 and it is the said notification of appointment which is being impugned through the captioned petition.
3. It is the case of the petitioner that respondent No,6 took oath of the office of the Acting Governor of the Province of the Punjab on 6-12-2008 at 4 P.M. It is asserted that the Government offices were closed on account of public holidays because of 'Eid-ul-Azha' from 8-12-2008 to 10-12-2008 and 7- 12-2008 was in fact also a holiday falling on Sunday. It has been further contended that 'Governor' and 'Acting Governor' of a Province are two distinct appointments emanating from two separate Articles i,e,, 101 and 104 of the Constitution of Islamic Republic of Pakistan, 1973 respectively. It was asserted that an Acting Governor is merely a stopgap arrangement who is only authorized to perform day to day functions of the Governor, and was not vested with the jurisdiction or authority to make/take any decision on any policy matter or to make any appointment including that of the Chairman of the Punjab Service Tribunal. It was added that by virtue of section '3(4) of the Punjab Service Tribunals Act 1974, the Chairman of the Punjab Service Tribunal is to be appointed by the Governor which power cannot be exercised by an Acting Governor. In support of such assertions, learned counsel for the petitioner relies on the judgment reported as (PLD 1996 SC 324) Al-Jehad Trust through Raeesul Mujahideen Habibul-Vdahabb-ul-Kheri and others v. Federation of Pakistan and others. It was further argued that the impugned notification has been issued in undue haste in absence of the permanent Governor, hence, suffers from mala fides, therefore, the same is not only unconstitutional but invalid and improper.
4. The learned counsel for the respondents have strongly controverted the contentions being raised on behalf of the petitioner. Learned counsel for respondents 1 to 3 and 6 have raised preliminary objection as to the maintainability of this petition. It was contended by them that the petitioner has no locus standi to invoke the Constitutional jurisdiction of this Court, furthermore, the captioned petition is based on mala tides and motivated by partisan politics rather than to uphold the Constitution and the law. It was next argued by the learned counsel that the Commission of Appointment of respondent No,6 as the 'Acting Governor' of the Punjab Province was issued by the President of Pakistan, which by virtue of Paragraph II authorized and empowered respondent No,6 to exercise and perform all and singular powers and duties of the Governor without any exception, limitation and restriction. It is further contended that Article 260 of the Constitution of Islamic of Pakistan, 1973 postulates the term 'Governor' includes any person for the time being acting as the Governor of a Province, therefore, all powers of the Governor can be exercised by the Acting Governor under the Constitution. It was also contended that Summary for the appointment of respondent No,5 had in fact been issued by the office of the Chief Minister Punjab to the office of the Governor Punjab, whereupon, no action was taken for an inordinate length of time thereby paralyzing the working of the Service Tribunal Punjab which is Constitutional entity conceived by Article 212 of the Constitution for the redressal of the grievances of the civil servants of the Province of Punjab, and on account of the aforesaid delay, the administration of justice stood paralyzed. It was also the case of the said respondents that inaction being exhibited in the instant case was a part of the deliberate pattern evidenced by similar delays and inaction upon other Summaries which were languishing for months on end. In this regard reference was made to the appointment of 'Provincial Ombudsman'. Learned counsel for the respondents also maintained that in terms. Of Article 105 .Of the Constitution, the Governor is bound by the advice of the Chief Minister, therefore, once the advice as to the appointment of the Chairman of the -Punjab Service Tribunal had been given issued to the Governor, the-appointment for the said incumbent was merely a formality, which even otherwise could be effected by the 'Acting Governor' even if the contentions of the petitioner regarding the status and authority of an acting incumbent of the said office were to be accepted. In support of their contentions, learned counsel relied on the judgments reported as PLD 2009 SC 879 Sindh High Court Bar Association v. Federation of Pakistan, 1997 M LD 3167, Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan, 1995 M LD 2022, Ali Raza Asad Abidi v. Justice Muhammad Ilyas, PLD 1994 SC 738, Pir Sabir Shah v. Federation of Pakistan and others, 1979 SCM R 17, Government of Sindh v. Hasina, 1994 CLC 5, Zafar Ali Shah. v. Federal Government of Pakistan, 2004 SCM R 1299, Dr.Azim-ur- Raman Khan Meo v. Government of Sindh, PLD 1969 SC 42, Dr.Kamal Hussain v. Muhammad Siraj-ul-Islam, 2008 CLC 738, Ghulam Ali Shah v. Election Commission of Pakistan, 2004 PLC (CS) SC 1328, M.Liaqat Munir Rao v. Shamas-ud-Din, PLD 1958 SC 437, The Tariq Transport Company v. The Sargodha Bhera Bus Service, PLD 1961 SC 192, Islamic Republic of Pakistan v. Muhammad Saeed, 1993 CLC 1067, Jan Muhammad and others v. Government of N.- W.F.P. Anal AIR 1982 Rajasthan 67 Arun Kumar v. Union of India and others.
5. Heard. Record perused.
6. In pith and substance it is the case of the petitioner that respondent No,6 while holding the office of the Acting Governor of the Province of Punjab was not vested with the authority or jurisdiction to appoint respondent No,5 as the Chairman of the Punjab Service Tribunal, and in support of said .
Assertion, the learned. Counsel representing the petitioner relied upon the judgment of the honourable Supreme Court in 'Al-Jehad Trust' case (PLD 1996 SC 324); supra, to canvass the limitations on the powers of a person holding the acting charge of a Constitutional post. In the judgment referred to above, the powers and functions of an Acting Chief Justice of Pakistan and of the' Provincial High Courts was examined in the context of the appointment of Judges of the Superior Courts..
7. In the judgment by the honourable Justice Muhammad Mina] Mian J, as he then was, it was observed as follows:-- ' The object of Acting Chief Justice is to have a that arrangement. It is a matter' of common knowledge that most of the Acting Chief Justices do not take any decision relating to important policy matters of the Court concerned without consulting the permanent Chief Justice.
8. In the elaborate note by honourable Mr.Justice Manzoor Hussain Sial, J. As he then was, the following excerpt reflecting at Page No,533 of the judgment (supra), appears to be relevant and is reproduced as. Follows:-- ' Article 196 is different in its import. Than Article 193, which relates to appointment of permanent Chief Justice of the High Court. The concept of Acting Chief Justice was initially introduced in India during pre-partition days, but had always meant appointment of an Acting Chief Justice as stopgap matters arrangement. He is not supposed to take decisions relating to important policy matters without consulting the permanent Chief Justice.
9. The afore-quoted observations of the honourable apex Court are in the context of the role of the Chief Justices of Pakistan and the Provincial High Court vis-a-vis the consultative, procedure for the appointments of the Judges to the superior Courts. In the above context, the observations at page No,491 of the judgment ibid are quoted for reference:-- ' Since the Chief of the High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during pre- partition days as well as post-partition period in India and Pakistan. I am, therefore, of the view that the words "after consultation" referred to inter alia in Articles '1.77 and 193 of the Constitution involve participatory consultative process between the consulters and also with the Executive.
10. The above referred observations are made with reference to the status of the recommendations of the Chief Justice of Pakistan and the Chief Justices of the respective Provincial High Courts as part of the consultative procedure envisaged by the Constitution, dealing with the appointment of the Judges of the Superior Courts. And in respect of such recommendations, the honourable apex Court in the aforesaid judgment held as under:--.
' Nobody has disputed that it has been a consistent practice which has acquired the status of convention during pre-partition days of India as well as post-partition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases. The practice of consultation of the 'Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts Act as well as under the Government of India Act, 1935, though the appointment of Judges of superior Courts Indian was matter of pleasure vested in the Crown.
11. It was further held in the said judgment at Pages Nos.519-520 as follows :
(i) The words "after consultation" employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan. And the Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.
12). The above excerpts from the judgment of the apex Court in Al-Jehad case has been made in the context of the independence of Judiciary and the Constitutional provisions relating to the Judicature, therefore, the principles enunciated therein may not necessarily apply with full force and vigor to the lis at hand.
13. Be that as it may, a close scrutiny of the above reproduced passages would reveal that an 'Acting Chief Justice' should not make any 'decision' relating to the important policy matters. The recommendations of the Chief Justice qua the appointments of the Judges of the Superior Judiciary for all intents and purposes were required to be accepted and acted upon. And his opinion in this behalf would have primacy in the consultative process. In the above perspective, it was held that the Acting Chief Justice was not a valid conslultee for purposes of the appointment of the Judges of the Superior Courts. It has the role in the decision making process which appears to be of paramount significance.
14. Adverting to the crucial issue prevalent in the lis at hand which essentially pertains to the appointment of the Chairman of the Punjab Service Tribunal, what must necessarily be identified is the person who is enjoined and authorized by law to take a decision in this regard. Section 3(4) of the Punjab Service Tribunal Act 1973 prescribes that Chairman shall be appointed by the Governor.
Article 105 (1) of the Constitution of Islamic Republic of Pakistan 1973 reads as under-.
105. Governor to act on advice, etc.----(1) Subject to the Constitution, in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet, [or the Chief Minster]: [Provided that the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, ' whether generally or otherwise, and the Governor shall act in accordance with the advice tendered after such reconsideration]
15. A bare perusal of Article 105 of the Constitution makes it clear and obvious that in the performance. Of his functions, the Governor is bound by the advice of the Chief Minister and is enjoined to act in consonance therewith. At best, he may ask the Chief Minister to reconsider the matter.
16. Resolving a similar controversy, the honourable apex'Court in the case reported as PLD 2009 SC 879 Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and others held as follows:-- Following the principle enunciated in the aforesaid two judgments, it is declared that in the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the fact that the recommendations of the Governor in the case of the respondents Nos.3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendations of Abdul Hameed Dogar, J.
17. The provisions of law and the Constitution applicable when 'examined in the above perspective and context reveals that Chairman of the Punjab Service Tribunal is to be appointed by the Governor in terms of section 3(4) of the Service Tribunal Act 1973, and the act of such appointment is a function of the office of the Governor, for which purpose, he is bound by the advice of the Chief Minister. It is the sole prerogative, discretion and authority of the Chief Minister to take a decision for the selection and appointment of the Chairman of the Punjab Service Tribunal, and to communicate his aforesaid decision to the Governor by way of an 'Advice' in terms of Article 105 of the Constitution. They said 'Advice' of the Chief Minister as held by the honourable apex Court is binding on the Governor who is not permitted in law either to reject the said 'Advice' or to substitute his own finding in lieu thereof. Thus, it is abundantly clear and obvious that no 'decision' is, to be taken by the Governor for the selection and appointment of an incumbent to the office of the Chairman of the Punjab Service Tribunal. A mere formal act for giving effect to the decision of the Chief Minister is to be performed by the Governor at best after seeking a reconsideration. Applying the criteria and touchstone laid down in Al-Jehad's case to the facts and circumstances of the instant case, we find that in view of Article 105 of the Constitution,' no decision is required to be taken by the Governor regarding the selection and appointment of Chairman Punjab Service Tribunal and merely the formality of giving effect to the decision of the Chief Minister is required of him. The Governor may remit the advice for reconsideration, but at the end of the day, the decision of the Chief Minister will prevail. This function can always be performed by the Acting Governor. To B interpret the provisions differently would nullify the very concept of the appointment of the Acting Governor to carry out day to day functions and would result in total paralysis of the Provincial Government in case of temporary absence of Governor which could never be the intention of the Law Maker. Consequently, we have no hesitation in holding that the respondent No,5 has been validly appointed and the notification impugned dated 8-12-2008 is free from any legal or Constitutional infirmity.
18. We have also taken note of an interesting feature emerging from this case that no issue has been raised qua the eligibility or suitability of respondent No,5 to hold the office of the Chairman Punjab Service Tribunal. And even after the Governor resumed his office on his return from his foreign, trip, he did not opt to initiate any formal communication/correspondence with the Chief Minister in this regard expressing any reservations qua the notification impugned. No doubt, the learned counsel for the petitioner has made reference to certain statements in the press alleged to have been made by, the Governor in this connection. However, we would suffice to add that such statements are mere partisan party politics rather than the Constitution in action.
19. The respondents have raised preliminary objections as to the maintainability of this Constitutional Petition. In view of the significance of the Constitutional issues being raised herein, we consider it appropriate to decide this petition on merit, hence, formal adjudication of the preliminary Objection appears to be irrelevant and unnecessary except to say that maintainability of this petition is not free from doubt.
20. For the foregoing facts and reasons, while dismissing Writ Petition No,18024-2008 being devoid of any merit, we hold and declare that the notification impugned dated 6-12-2008 appointing, respondent No,5 as Chairman of the Punjab Service Tribunal to have been validly issued by respondent No,6.
21. On 21-12-2010 short order was announced by us in the open Court at Lahore and the above mentioned are the detailed reasons therefor. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.