UMAR ATA BANDIAL, J.---This judgment also decides connected Writ Petitions Nos.11480 and No,11751 of 2013 involving a common question of law.
2. These petitions express a common grievance against two orders dated 2-5-2013 passed by the Law and Parliamentary Affairs Department, Government of the Punjab: by one order, 13 Assistant Advocates General and by the other order 7 Additional Advocates General were "removed from office with immediate effect." It is submitted that prior to the aforenoted two impugned orders, there were 44 Assistant Advocates General and 21 Additional Advocates General holding posts in the office of the Advocate General. Punjab. The said impugned orders do not state any ground for removal from service of the affected law officers three of whom have filed petitions before the Court.
3. It is, firstly, alleged on behalf of the petitioners that their sudden removal from office Casts an undue aspersion and stigma on their professional standing and conduct. Secondly, that the impugned orders of the petitioners' removal from office are whimsical and arbitrary for being selective without reference to any criteria in targeting the petitioners whilst retaining 14 Additional Advocates General and 31 Assistant Advocates General although they were similarly placed. Since no intelligible differentia distinguishes the law officers that have been retained in service from the others, including the petitioners, who have been removed from service, it is alleged that the impugned orders are discriminatory in effect. Thirdly, it is contended that the impugned orders have been passed by a caretaker government formed under Article 224(1A) of the Constitution. The functions of a caretaker government have been elaborated by the Hon'ble Supreme Court in Kh.
Ahmad Tariq Rahim v. Federation of Pakistan and others (PLD 1992 SC 646) as under:- "The object of the Care-taker Cabinet is to fill a temporary void so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far-reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery, or funds are channelled in favour of any political party. Perhaps its most important duty is to ensure, free, fair and impartial elections, the said function being inherent in the very purpose, for which it is constituted."
' According to the dictum of the Hon'ble Supreme Court of Pakistan, the petitioners' removal from service allegedly exceeds the executive authority and power available with the caretaker Government of Punjab. This aspect is exemplified by the caretaker Federal Government and the' three caretaker provincial governments. The petitioners claim that in deference to limitations on exercise of executive authority none of the said caretaker governments have touched their previously appointed law officers. However, the caretaker Government of Punjab has disregarded such limitation and passed the impugned orders illegally.
4. Fourthly, it is informed that simultaneously with the impugned orders the respondents appointed several new law officers. Although the petitioners have no grouse against such appointments, however, in doing so, the respondents violated a restriction imposed by the Election Commission of Pakistan ("ECP"). Reference is made to ECP notification dated 22-1-2013 as amended on 6-2-2013 which prohibits all kinds of recruitment in any department or institution, inter alia, of the provincial government till the holding of elections in order to prevent, such recruitment from influencing the result of he general elections. Accordingly, it is argued that fresh recruitment of law officers by the caretaker Provincial Government violates the ban imposed by the ECP vide its aforenoted notification dated 22-1-2013. Finally, it is argued that 'removal from office' is a major penalty imposed under section 4(b)(v) of PEEDA Act, 2006 for misconduct committed by a government servant. Therefore, the terminology of the impugned notifications casts a serious aspersion on the service and conduct of the petitioners.
5. Learned Advocate General Punjab explained his point of view in the matter on 9-5-2013 and thereafter, on 14-5-2013 the learned Senior Addl. A.G has further elaborated the stand of the provincial government. On their behalf it is argued that the appointment of law officers is made under the Law Department Manual, 1938. Paragraph 1.18(4) thereof is in the following terms: "An Additional Advocate General or an Assistant Advocate General shall hold office during the pleasure of the government and shall be liable to be removed from office at any time without notice."
6. It is emphasized that the appointment of the petitioners to their respective law offices does not create any vested right in the petitioners' favour. Their appointment is during the "pleasure of the government"; it may be terminated at any time without assigning any reason. For the said proposition of law, support is drawn from the view expressed by a learned Division Bench of this Court in Shafqat Mahmood Lodhi v. The Accountant General West Pakistan Lahore (PLD 1968 Lah.
786) and also by a learned Division Bench of the Peshawar High Court in Dr. Said Qayum v.
Secretary, Education Peshawar and others (1998 PLC (C.S.) 1218). It is, secondly, emphasized that a law officer working in the office of the Advocate General is actually in a lawyer-client relationship with the Government of Punjab. Such relationship is exceptional in comparison to any other government employment because it is based on confidence which is a subjective matter.
Therefore, the petitioners have no right whatsoever to expect loss of confidence to be justified by reasons given prior to their removal from office. The expression 'removal from office' used in the impugned notifications is not meant to cast any aspersion on the petitioners but is borrowed from the language of paragraph 1.18(4) of the Law Department Manual, 1938 for adopting the authorized mode of termination of employment of a law office.
7. The Court has been ably assisted by the learned counsel for the parties, namely, M/s Zaka-ur- Rehman Awan, Muhammad Azhar Siddique and Imtiaz Ahmad Kaifi, Advocates on the one hand and the learned Advocate General and learned Senior Addl. A:G. On the other hand. There is authority of the Hon'ble Supreme Court of Pakistan on the meaning of employment "at pleasure" of the State given in Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) which is reproduced as follows: "On account of our colonial legacy and its attendant pattern of governance, this examination takes us 'back to the pre-independence dispensation and to the British constitutional scheme.
That was a time When almost all important State functionaries including not just the Prime Minister and the Cabinet but also judges and civil servants, were appointed and removed by the British monarch in his absolute unfettered discretion. It is for this reason they were said to hold office during the King's pleasure." While this vestige of an absolute monarchy receded in Britain on account of emerging democratic conventions, in the colonies it survived. Even after several years of independence, this practice continued, as was manifested by the imperious dissolution of the Constituent Assembly, in 1954 by the representative of the British Crown."
"Much has changed since then. Pakistan now has a democratic Constitution which provides for the government of laws and not of men. It is for this reason that in our Constitution there remain few positions where the incumbents "hold office during the pleasure" of someone else based on broad discretion. In its undiluted form this convention exists only in Article 100(2), Article 101(3) and Article 140(3) which relate to the appointments of a Governor, the Attorney General and the Advocates General respectively. Similarly, such discretionary powers do not exist in those statutes which relate to autonomous regulatory bodies like OGRA."
"It is to be noted that even where appointments are to be made in the exercise of discretionary powers, it has become well-settled that such powers are to be employed in a reasonable manner and the exercise of such powers can be judicially reviewed. In the Corruption of Hajj Arrangements" case . (Suo Motu Case No,24 of 2010) and in the case of Tariq Aziz-ud-Din (2010 SCMR 1301), it has been held that appointing authorities "cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather, they are bound to act fairly, evenly and justly."
The view expressed by the Hon'ble Supreme Court emphasizes the rule of law as a fundamental ground "norm of; our polity that makes employment at pleasure justiciable. This principle is also echoed by the Indian Supreme Court. In B.P. Singhal v. Union of India and another (2010) 6 SCC 331) it is observed as under: 'The doctrine of pleasure however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically. It does not dispense with the need for a cause for withdrawal of the pleasure."
In paragraph 70 of the B.P. Singhal's judgment it is clarified that the appointment of Attorney General involves an element of lawyer-client B relationship and that loss of confidence is, therefore, very relevant criterion for withdrawal of pleasure.
8. In the facts of the present case, 20 law officers have been removed from their office without assigning any reason. Based on the view expressed by the Hon'ble Supreme Court of Pakistan: there must be some justification for the removal from service of a law officer because such action is justiciable to assess its fairness. Whilst undertaking such scrutiny and drawing upon the caveat by the Indian Supreme Court one may, in the circumstances of the present case of no reasons being cited for the impugned action, interpret it as a loss of confidence of the provincial government in the petitioners who were removed from service. On account of the peculiar nature of the lawyer-client relationship attendant to the post of the petitioners, the requirement for disclosure of reasons for removal from, service of the petitioners may arguably be dispensed.
9. However, from the manner in which the, petitioners have been removed from office, namely, by their individual selection whilst many other law officers have been retained in office creates differentiation by the respondents between two groups of law officers. As no reasons for the impugned action are given therefore a heavy burden is cast on the respondents to justify selective loss of confidence in the petitioners. Neither the learned Advocate General nor the learned Senior Addl. A.G. Has tried to justify the impugned orders on their merits. These orders are defended purely on the doctrine of measure. Reading the impugned action in the context of, firstly, the justiciability of executive action to terminate an officer employed at pleasure and secondly, the limited mandate of a caretaker cabinet as interpreted in Kh. Ahmad Tariq Rahim v. F.O.P. And others (supra), the stand taken by the respondent government authorities is not satisfactory.
10. A caretaker government has no politics. Under Article 218(3) of the Constitution, it shares the duty of the ECP to conduct the general election honestly, justly, fairly and in accordance with law and that corrupt practices are guarded. Against. Given that charter as reiterated in Kh. Ahmad Tariq Rahim's case, the caretaker government has discretion F to make changes that strengthen its ability to discharge its constitutional obligation. One significant aspect of the said constitutional obligation of a caretaker provincial government is to demonstrate and maintain strict neutrality in the discharge of its functions, inter alia, by appointing nonpartisan officers. The impugned action at the hands of a caretaker government may be justified on the said account. However, if the appointment of the petitioners by a political government is the presumable cause of their fall from confidence, then the retention of other law officers who have been appointed by the same political government, has no justification. On that ground an allegation of discrimination by the petitioners is well founded.
11. The terminology used in the impugned action, namely, 'removal from service' is a penalty under the present day provincial disciplinary law, namely, section 4(b)(v) of PEEDA Act, 2006. The expression has a negative connotation in the context of government employment. Therefore, the petitioners on that score have a valid ground to entertain a grievance and hurt against the impugned action. Using the logic of the Hon'ble Supreme Court expressed in Muhammad Yasin's case (supra), the language and terminology of the colonial legislation affecting the constitutional rights of the citizen have in the present day of government of laws and not of men, lost relevance and efficacy. Accordingly, when no opprobrium or disapproval is statedly intended by the respondent department, then the petitioners' selection for termination of service without reference to any criteria or grounds and that too in harsh language are both legally objectionable actions on the part of the respondent department:
12. The petitioners whether Additional Advocates. General or Assistant . Advocates General have a fundamental right under Article 25 of the Constitution as interpreted by the Hon'ble Supreme Court of Pakistan in Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), that identically placed persons must be treated identically. The difference between those Additional Advocates General and the Assistant Advocates General who have been removed from office as against those who have been retained in office must be based on intelligible criteria. As no such criteria has been shown to the Court, the classification adopted by the impugned action is arbitrary and violates the rule laid down under Article 25 of the Constitution.
13. Therefore on that narrow ground of discrimination and also for the use of penal terminology for dispensing with the service of the petitioners, the impugned orders dated 2-5-2013 pronouncing the petitioners' removal from service are declared to be illegal, without lawful authority and of no legal effect.
14. The consequence of the foregoing analysis and finding is not to denounce the appointment of new law officers by the caretaker provincial government. This is for the reason that such officer may be enjoying better confidence of the provincial government. The respondents are at liberty to take action against the petitioners in a just and fair manner without discrimination, and unless reasons are given, without casting aspersion on their service or conduct.
15. The Writ petitions are allowed in the foregoing terms and to the foregoing extent.