1. ' IJAZ AHMAD, J.---Vice Chairman Punjab Bar Council and Punjab Bar Council through its Secretary, respondents Nos.2 and 3 respectively are represented through Mr. Mujeeb-ur-Rehman Kiayani, Advocate, who is absent today but whose name is borne in the cause list. Both the said respondents are ordered to be proceeded against ex parte.
2. For the four seats allocated to Rawalpindi District for the Punjab Bar Council (PBC), under section 5(2)(b) of the Legal Practitioners and the Bar Councils Act (LP&BCA) 1973, the petitioner, respondent No,4 vis-a-vis the others contested the election held on 21-11-2009. The term of office is five Years. Respondent No,4 finished 4th, at the bottom of the successful candidates.
3. The petitioner with 1047 votes finished 5th and was a runner up according to Notification dated 27-11-2009 issued by the PBC. Respondent No,4 was appointed as Deputy Attorney General vide Notification No,F.5 (31)/2011- A.VII(pt)(B) dated July 31st 2012. The petitioner claiming the right to occupy the vacant seat, under the provisions of section 16(b) of the Legal Practitioners and Bar Councils Act, 1973 made an application to the Advocate General/Chairman Punjab Bar Council, Punjab for issuance of notification accordingly. It was dismissed vide the impugned order dated 7-11-2012 on account of lack of jurisdiction.
4. It is contended by the petitioner that the offices of an Attorney General for Pakistan under Article 100 and that of an Advocate General for a Province under Article 140 of the Constitution of Islamic Republic of Pakistan, 1973 are the Constitutional posts, but the offices like that of Additional Attorney General, Deputy Attorney General, Additional Advocate General and the Assistant Advocate General are the statutory posts. According to the rights and privileges etc., to which the AAG and DAG are entitled, the said posts may be termed as offices of profit. The above mentioned Constitutional posts are distinguishable from the statutory posts. Further contends that after having been appointed the Deputy Attorney General, which is an office of profit, respondent No,4 has joined the service of Pakistan. The exclusion of the Attorney General and the Advocate General from the term "service of Pakistan" under Article 260 of the Constitution does not extend to a Deputy Attorney General or Additional Advocate General or Assistant Advocate General. In order to substantiate his argument that respondent No,4 is holding an office of profit, he refers to SRO.No,635(I)/2011 which contains Additional Attorney-General, Deputy Attorney-General and Standing Counsel (Terms and Conditions) Rules, 2011. Rule 2 of the said Rules, prescribes the retainer ship, perks and privileges to which the Additional Advocate General and Deputy Attorney General will be entitled. He also refers to S.R.O. Government of the Punjab Law and Justice Divisions Notification dated 28-3-2013 which sets out the quantum of retainership, the transport, the telephone facility and house rent, etc. He argues that these two documents leave no room to doubt that the office held by respondent No,4 is an office of profit. Relies on "PLD 1994 Supreme Court 60" titled Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others to argue that in order to fall in the category of service of Pakistan, one need not be a civil servant in stricto senso. Relies on "1998 SCM R 425" titled Muhammad Khursheed Khan v. Returning Officer and 4 others and "2003 CLC 1730" titled Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others to argue that the offices like Deputy Attorney- General and Additional Advocate-General, having monetary benefits are offices of profit connected with the affairs of Federation and the Province. Argues that in view of Section 5C(a) of the LP&BCA, 1973, the membership of respondent No,4 has ceased to exist after having been appointed to an office of profit and that under section 16(b), the petitioner is to succeed as member Punjab Bar Council automatically.
5. On the other hand, it is contended by the learned counsel appearing on behalf of respondent No,4 and the learned AAG for respondent No,1 that an order passed by the Punjab Bar Council includes an order passed by its Chairman, the Advocate General as the Provincial Bar Council consists of the Advocate General and its members under section 5 of the LP&BCA, 1973. Since no appeal under section 13(2) of LP&BCA, 1973 has been preferred before the Chairman Pakistan Bar Council, this constitutional petition without availing the statutory remedy is not maintainable.
6. Relies on "2012 SCM R 702" titled Tariq Mehmood A. Khan and others v. Sindh Bar Council and another. He further contends that office of the Deputy Attorney General is not an office of profit.
7. He is not getting his salary like a civil servant and his post is neither permanent one nor pensionerable. The said respondent cannot be termed to be a civil servant and cannot be said to be engaged in the service of Pakistan. As the Attorney General, has been excluded from the definition of "service of Pakistan", the exclusion includes a Deputy Attorney General. The said respondent does not cease to be a member of the Punjab Bar Council.
8. Heard. Record perused.
9. Four memberships have been allocated in Punjab Bar Council to Rawalpindi District.
10. Respondent No,4 finished at the 4th position and the petitioner ended as a runner up. Under section 16(b) of LP&BCA, 1973, the vacancy has to be filled by the person who received the highest number of votes next after the member whose vacancy is to be filled. Respondent No,4 receiving the retainership, the conveyance allowance and house rent, etc. holds an office of profit as has been held in "1998 SCM R 425" and "2003 CLC 1730". In the latter case, the Member Punjab Bar Council had been appointed as Head of Prosecution. The writ petition of the runner up was dismissed. During the pendency of an Intra Court Appeal, the successful candidate resigned and then joined as AAG. Even in the changed circumstances, the AAG was said to have ceased to hold the office as Member Punjab Bar Council. The offices of an Attorney General for Pakistan and the Advocate General for a Province are the constitutional posts. They have to act as Attorney General and Advocate General and as Ex-Officio Chairman of the Pakistan Bar Council and Provincial Bar Council as the case may be, simultaneously. The exclusion of Attorney General and the Advocate General from the definition of "Service of Pakistan", does not extent to a Deputy Attorney General or an Additional Advocate General, which are only statutory offices. The judgment relied upon by the learned counsel for respondent No,4 is of little help to him. In that case, the death of a member of Sindh Bar Council resulted in an order passed by the Sindh Bar Council declaring the runner up as having been elected. This order was challenged by some persons desiring an entry into the Sindh Bar Council through fresh election. That petition was dismissed by Hon'ble High Court and C.P.No,1305/2011 was also dismissed by the august Supreme Court of Pakistan.
7. The elections were held on 21-11-2009 for a term of five years. Four years have already elapsed. Advising the petitioner to have recourse to Punjab Bar Council at this stage will be tantamount to total refusal of the relief, the petitioner is entitled to. This remedy may be alternative but cannot be termed to be efficacious. The provisions of law as contained in Articles 240 and 260 of the Constitution of the Islamic Republic of Pakistan 1973 and sections 5C(a) and 16(b) of LP&BCA, 1973 are so unambiguous, the judgments referred by the petitioner are that much directly applicable to the circumstances of his case that I am left with no option but to accept this petition to hold that under section 5C(a) of LP&BCA, 1973 respondent No,4 has ceased to be a Member of Punjab Bar Council and to direct that under section 16(b) of the same Act, the petitioner having polled the highest number of votes next after respondent No,4, shall be declared elected and be notified accordingly by the Punjab Bar Council.. Petition accepted