' QAZI FAEZ ISA, J. --- This appeal assails the judgment of a learned. Division Bench of the Islamabad High Court which accepted an intra-Court appeal; consequently, the Writ Petition No. 1954 of 2014 filed by the appellant stood dismissed which had been allowed by the learned Single Judge of the Islamabad High Court.
2. In the petition filed before the High Court the appellant had assailed the notification dated April 17, 2014 ("the impugned notification") which had dismissed the appellant from the position of Chairman of the Pakistan Electronic Media Regulatory Authority ("PEMRA"). The appellant had further prayed that after setting aside the impugned notification he should be reinstated as Chairman, PEMRA.
3. Mr. Wasirn Sajjad, the learned senior counsel appearing for the appellant, stated that the appellant had been appointed as Chairman, PEMRA on January 26, 2013 and as Section 7 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ("the Ordinance") stipulated that this appointment was to be for a period of four years therefore before the expiry of his four year term the appellant could not be removed as Chairman; the Chairman could only be removed on the ground of misconduct or on account of any physical or mental incapacity. However, the appellant was removed on the ground of misconduct without any misconduct committed by him as Chairman. Reliance was also placed on the case of Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa (2015 SCM R 43) to support the contention that a person holding a fixed tenure post could not be removed from it before the expiry of the stipulated term. He further stated that the Government had alleged that the appellant was illegally appointed, however, if this was correct then the Government itself was to blame and could not turn around to disown its own illegal act; in this regard reliance was placed upon the cases of: Secretary to Government of N.WF.P. v. Sadullah Khan (1996 SCM R 413), Collector of Customs and Central Excise v. Abdul Waheed (2004 SCM R 303) and Muhammad Shoaib v. Government of NWFP (2005 SCM R 85). The learned senior counsel next contended that the appellant was removed on the purported ground of misconduct which he had allegedly committed before his appointment as Chairman, PEMRA and such conduct could not be made the basis for his removal. He further stated that Mr. Shahid Khan the Secretary of the Ministry of Interior, who had been appointed to conduct the inquiry against the appellant (hereinafter "the inquiry officer") 'did not provide an opportunity to the appellant to defend himself in accordance with the well established rules of natural justice and Article 10A of the Constitution of the Islamic Republic of Pakistan ("the Constitution"). Thus, on the basis of a one-sided inquiry, the inquiry officer arbitrarily decided that the appellant had committed misconduct in his inquiry report dated March 12, 2014 (hereinafter "the inquiry report"). And, the credibility of the inquiry report would not be enhanced merely because it was accepted by the Prime Minister, without application of mind, and then by the President. the learned counsel submitted in concluding his arguments. He alternatively contended that, even if the appellant is not restored to the position of Chairman, PEMRA, to serve out the remaining portion of his four year term, he was nonetheless entitled to receive the salary that would have been payable to him as Chairman, PEMRA.
4. During the course of his arguments the learned senior counsel also referred to the writ petitions filed by the appellant in the Islamabad High Court before he had filed Writ Petition No. 1954 of 2014, and these were Writ Petition Nos. 4606 of 2013. 312 of 2014 and 1508 of 2014 (hereinafter "WP 1954".
"WP 4606". "WP 312" and "WP 1508" respectively). Mr. Sajjad also emphasized on the `comments' that were submitted by the Government in the Writ Petition No. 1548 of 2013 ("WP 1548") filed by Mr. Abdul Jabbar (Executive Member, PEMRA) who had challenged the appointment of the appellant, wherein the Government had stated that the law did not prevent a Secretary for proposing his own name for appointment as Chairman, PEMRA, therefore, the Government could not take a different position subsequently.
5. Mr. Sohail Mehmood, the learned Deputy Attorney General ("DAG"), and Mr. S. A. Rehman, the learned senior counsel representing PEMRA, stated that the Government had not challenged the judgment dated December 16, 2013 delivered in WP 4606, however, this judgment had specifically permitted the Government to proceed against the appellant if it wanted to do so, but only after providing him with an opportunity of a hearing. It was contended that the appellant did not prefer an appeal against this portion of the judgment, therefore, he could not object when he was proceeded against in accordance therewith. The Government had complied with the requisite formalities and direction of the High Court as a show cause notice was first issued to the appellant calling upon him to reply thereto. the appellant submitted his reply. the appellant was then granted an opportunity to examine the documents which he wanted to and was provided with two opportunities of hearing. However, instead of examining the documents and participating in the hearing the appellant filed WP 312 assailing the letter, through which he was provided with an opportunity to examine the documents which he had sought.
The appellant made another futile attempt to thwart the inquiry proceedings by filing WP 1508 on equally tenuous grounds. In neither of these petitions (WP 312 and WP 1508) were the inquiry proceedings suspended or stopped. The inquiry therefore continued against the appellant. who was removed from the position of Chairman, PEMRA, after submission of the inquiry report. The inquiry officer had provided every opportunity to the appellant to put forward his point of view, examine the documents sought by him and also avail of the two opportunities of hearing; therefore, complete compliance was made with the specific direction of the High Court, the rules of natural justice and Article 10A of the Constitution.
6. The learned counsel for the respondents further stated that the matter. of the appointment of Chairman, PEMRA was taken up by this Court in the case of Hamid Mir and another v. Federation of Pakistan etc., (CP Nos. 104, 105 and 117 of 2012) wherein Mr. Abdul Jabbar's holding the position of Acting Chairman, PEMRA was commented upon and vide Order dated January 15, 2013 this Court directed that the appointment.
"6. ...the position of Chairman PEMRA has to be filled by a person who fulfils the exceptional and stringent requirements prescribed in the PEMRA Ordinance and not by a casual appointee.
Moreover, the appointment has to be made through an open and transparent process to ensure that the appointee meets the objective criteria specified in the PEMRA Ordinance."
' However, contrary to the aforesaid Clear directions of this Court, to appoint the Chairman through, "an open and transparent process" and to "ensure that the appointee meets the objective criteria specified in the. PEMRA Ordinance" the appellant, in the "Summary for the President" dated January 8, 2013 (hereinafter "the Summary"), which he himself had prepared, proposed three names for the post, namely, (1) Dr. Abdul Jabbar, Executive Member, PEMRA, (2) Mr. Ghulam Murtaza Solangi, Director General of the Pakistan Broadcasting Corporation and (3) "Mr. Rashid Ahmed, Secretary l&B", that is, himself. The Summary was signed by the appellant without specifically stating that he was also proposing himself. The appellant also did not disclose the manner in which the appointment of Chairman was required to be made as had been directed by this Court, and referred to the order of this Court in the abovementioned case only to highlight that Dr. Abdul Jabbar had been restrained from working as Chairman, PEMRA. Moreover, contrary to the direction of this Court, the post was neither advertised nor was transparency observed.
7. The learned counsel for the respondents next contended that the appellant was a Government servant therefore he had to obtain prior written permission from the competent authority before he could apply for the post, but he did not do so. It was further alleged that the Establishment Division, vide O.M.No. 6/4/96-R.3 dated May 1997, had issued the "Procedure Regarding Appointments in Autonomous/Semi-Autonomous Bodies, Under the Federal Government", reproduced at SI. No. 140 in Vol. 1 of the Civil Establishment. Code ("Esta Code"), however, this procedure too was not followed.
'Therefore, for this and all the reasons mentioned above the appellant was rightly removed from the position of Chairman, PEMRA. Reliance was also placed on the judgments of this Court in the cases of: Muhammad Ashraf Tiwana v. Pakistan (2013 SCM R 1159), Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132) and Tariq Aziz-ud-Din: in re (2010 SCM R 1301). Mr. Rehman also pointed out that Mr. Absar Alam had been appointed Chairman, PEMRA on November 2015, in accordance with law, and his appointment was not challenged by the appellant.
8. We have heard the learned counsel and with their able assistance gone through the record, the provisions of the Ordinance, the Estacada and the cited precedents. However, before we attend to the merits of the case it would be appropriate to consider the writ petitions referred to by Mr. Wasim Sajjad. -
9. WP 4606 was filed on December 16, 2013 by the appellant against the Federation of Pakistan challenging his removal from the post of Chairman, PEMRA; the High Court accepted the petition and set aside the appellant's removal as he had not been provided an opportunity of a hearing, however, concluded by holding that the Government, "will have a right to proceed against the petitioner, if they deem appropriate, provided an opportunity of hearing is provided to the petitioner". This judgment was not challenged by either side. The respondents contend that the appellant was proceeded against after providing him with two opportunities of hearing. Instead, the appellant filed WP 312 on January 25, 2014 and sought to restrain the Federation, "from interfering in the affairs of PEMRA and not to harass and not to arrest him" [the appellant]. The appellant then filed WP 1508 in March, 2014 (actual date of filing does not find mention in the copy of the petition on record) seeking, quite inexplicably, to set aside letter dated February 24, 2014 written by the inquiry officer through which he had made available the documents which the appellant had himself sought. However, the appellant was not interested in participating in the inquiry and purging himself of the allegations made against him. On untenable and tenuous pretexts he only wanted to thwart the inquiry.
10.The appellant was served with a show-cause notice in which it was alleged that in his position as Secretary to the Ministry of Information and Broadcasting he had recommended himself to be appointed to the position of Chairman, PEMRA. The Summary which the appellant prepared attempted to give it a veneer of credibility by proposing three names, however, its author (the appellant) did not specifically disclose his personal interest. The appellant responded to the show cause notice by submitting reply dated February 13, 2014 ("reply"). Paragraph 11 of the show-cause notice issued to the appellant also referred to SI. No. 140 in Vol. 1 of the Esta Code which prescribes the, "Procedure Regarding Appointments in Autonomous/Semi-Autonomous Bodies, Under the Federal Government" and alleged that the appellant's appointment was in violation thereof. This allegation was not responded to by the appellant in his reply. The show-cause notice had also referred (in paragraph 6) to the order of this Court which had stated, "that the position of the Chairman PEMRA to be filled by a person who fulfils the exceptional and stringent requirement prescribed in the PEMRA Ordinance and not by casual appointee" and had alleged that the said direction of this Court was disregarded by the appellant. Sub-section (2) of Section 6 of the Ordinance sets out the qualifications of Chairman, PEMRA who, "shall be an eminent professional of known integrity and competence having substantial experience in media, business, management, finance, economics or law". In his reply the appellant supported his own candidature by simply stating that he, "was the serving Secretary MB". Keeping aside the matter of integrity and competence the appellant cannot be categorized as "an eminent professional" having "substantial experience" in any of the listed areas.
11. The appellant acknowledged that "he had retired from Government service on 26.04.2013"
(paragraph (6) on page 3 of the appellant's reply). However, the appellant was appointed as Chairman on January 26, 2013, on which date he was still in Government service. The appellant neither resigned nor sought premature retirement. Therefore, since the appellant was in Government service when he proposed his name on January 8, 2013 for appointment as Chairman and then when he was appointed on January 26, 2013 he violated yet another rule, which was not having obtained the prior written permission before applying. The show-cause notice had also alleged that the appellant had violated sub-section (1) of Section 10 of the Ordinance which prohibited him from engaging, "himself in any other service, business, vocation or employment". In the appellant's reply he responded by stating, that sub-section (1) of Section 10 of the Ordinance was not applicable because he "had relinquished charge of the Government position as Secretary, Information and Broadcasting before assuming the charge of the post. of Chairman PEMRA."
Relinquishment of charge did not sever the appellant from Government service, in which he continued till April 26, 2013. The appellant therefore committed misconduct as he had violated Section 10 of the Ordinance by continuing in Government service whilst holding the position of Chairman, PEMRA.
12.The inquiry report recommended the dismissal of the appellant from the position of Chairman, PEMRA. The rules of natural justice, the status of which have been elevated to a fundamental right with the insertion of Article 10A into the Constitution of Pakistan, were fully complied by the inquiry officer. A show-cause notice was served upon the appellant. The appellant submitted his reply which was duly considered. The inquiry officer provided more than one opportunity of personal hearing to the appellant (on February 26, 2014 and again on March 6, 2014) but he did not avail of the opportunities. The inquiry report recommended the dismissal of the appellant from the position of Chairman, PEMRA and the Prime Minister accepted his recommendation and advised the President to remove him and the President accepted his advice.
13.The learned Single Judge of the High Court had attributed mala fide to the respondents without any evidence of this. The learned Judge also airbrushed the illegalities committed by the appellant in securing his own appointment by holding that the removal of the Chairman on the ground of misconduct, mentioned in sub-section (1) of Section 7 of the Ordinance, was misconduct "done in capacity as Chairman PEMRA". However, as the law does not place this limitation in the said provision it was not for the learned Judge to do so. Athar Minallah J., writing for the Divisional Bench of the High Court, comprehensively attended to the facts of the case and capably set things right and we have not been persuaded to take a different view.
14. The judgments which were referred to by Mr. Wasim Sajjad are not relevant. The Sadullah Khan and Muhammad Shoaib cases (above) were appeals from the then NWFP Service Tribunal and Abdul Waheed's case (above) was an appeal from the Federal Service Tribunal and all of these cases concerned civil servants and their terms and conditions of service as civil servant. The present case is altogether different as it involves the mode and manner in which a civil servant recommended his own appointment as Chairman, PEMRA, a statutory position established under the Ordinance; whether he was competent to be appointed as Chairman, PEMRA and whether he had committed misconduct.
' The case of Badshah Gul Wazir (above) pertained to the appointment of a qualified person as the Ombudsman of Khyber Pakhtunkhawa for a period of four years but who was removed without any reason. In removing him reliance was placed upon the amendment in the law which had brought down the age of the person holding the office of Ombudsman by so interpreting the law to give it retrospective effect. This Court held that the legislature had not curtailed the tenure of the office of the person who was appointed as Ombudsman and the notification whereby he was removed was struck down. This precedent therefore has no application to the facts of the present case.
15.That as regards Mr. Wasim Sajjad's alternative contention that the appellant be paid the salary for the post of Chairman, PEMRA, in case his restoration is not ordered, becomes irrelevant since the appellant could not have been appointed as Chairman, PEMRA. Be that as it may, the Establishment Secretary had objected to the MP-I Summary in respect of the appellant on the following grounds:--- "9. Establishment Division further points out that the appointment of Mr. Rasheed Ahmed as Chairman, Pakistan Electronic Media Regulatory Authority (PEMRA) was made when he was a regular officer of BS-22 of Secretariat Group and he retired from Government service on 26.04.2013 on attaining the age of superannuation, Neither the post of Chairman, Pakistan Electronic Media Regulatory Authority (PEMRA) was advertised nor Mr. Rasheed Ahmed, a BS-22 officer of Secretariat Group, applied therefor through proper channel pursuant thereto nor he resigned from government service or sought retirement before joining as Chairman, Pakistan Electronic Media Regulatory Authority (PEMRA), so as to severe his connection with his Service/Department. He could be given MP-I Scale if the procedure referred to above in pare 7 would have been followed.
10.In view of the above, Establishment Division does not endorse the proposal of Ministry of Information and Broadcasting contained in para 5 of the Summary."
' Neither the appellant before the inquiry officer nor Mr. Wasim Sajjad before us could show that the above mentioned objection of the Establishment Secretary was not sustainable.
16.Mr. Wasim Sajjad placed considerable reliance on the Government's comments filed in WP 1548 (hereinafter "the said comments"), which stated that if the Secretary had proposed himself for the post of Chairman, PEMRA there was nothing wrong with it. In WP 1548 the Government was represented by a private counsel and there is no document on record to show that the Government had nominated him. The said comments were not signed by the Attorney General, Deputy Attorney General, Standing Counsel or any other law officer of the Government, but by the private counsel though the Secretary Information and Broadcasting had also signed them. WP 1548 had challenged the appointment of the appellant as Chairman, PEMRA and there was no apparent interest of the Government in the matter but still a senior private counsel, who must have been paid handsomely, was engaged to protect the appellant. Mr. Wasim Sajjad stated that there was no restriction in the law for the Government to engage a private counsel/advocate and every party is entitled to be represented by the counsel of its choice.
17. A private litigant has the right to engage the services of any advocate, subject to the advocate agreeing to such engagement, and pays for his/her services. However, the Federal Government and the provincial governments have a host of law officers who are paid out of the public exchequer. If a government contends that none amongst its law officers are capable of handling cases then the question would arise why have incompetent persons been appointed. In such a scenario the public suffers twice, firstly, they have to pay for incompetent law officers, and secondly, they have to pay again for the services of competent counsel the government engages.
The public exchequer is not there to be squandered in this manner. This Court has observed that the State must protect, "the belongings and assets of the State and its citizens from waste and malversation" (Muhammad Yasin v. Federation of Pakistan, PLD 2012 SC 132, at 143B). This Court had also taken strong exception to the Government of Sindh and the Inspector General of Police, Sindh engaging the services of a private counsel for three million rupees instead of the "Advocate General and law officers from his office" (Mahmood Akhtar Naqvi v. Government of Sindh, 2015 SCM R 810, at 820E).
18.The High Courts of the Provinces and the Supreme Court of Azad Jammu and Kashmir have also from time to time expressed concern of governments engaging private counsel. The Lahore High Court in the case Punjab Agriculture (Bagh-e-Jinnah) v. Registrar of Trade Unions (1997 PLC 579) observed that under the Rules of Business of the Punjab Government, framed under Article 139 of the Constitution, a private counsel could only be engaged with the permission of the Law Department and if he is engaged "without permission of the Law Department [it] is not legal and the private counsel so engaged cannot act and plead on behalf of the Government" (page 586D).
In the case Mumtaz Rasool Mir v. Tariq Mir (PLD 2011 SC (AJ&K) 36) the Supreme Court of Azad Jammu and Kashmir referred to the Azad Jammu and Kashmir Law Department's Manual and that its Section 34 stipulates that the Law Department shall be the only authority competent to select and instruct counsel on behalf of the State. The Court castigated the respondent for not ensuring the interest of the State and observed that his conduct was "unbecoming of a holder of Public Office" (page 47).
19.The Rules of Business of the Federal Government of Pakistan, made pursuant to Article 99 of the Constitution, lists the Ministries and Divisions (Schedule I) of the Federal Government and distributes business amongst its different Divisions (Schedule II). The "Information, Broadcasting and National Heritage Division" is listed at serial 16 of this Schedule and none of the subjects mentioned there under permit the engagement of private counsel. "Legal proceedings and litigation concerning the Federal Government except the litigation concerning Revenue Division"
(clause 7) and "Attorney General and other Law Officers of the Federation" (clause 11) are mentioned under the "Law, Justice and Human Rights Division" (serial 21, Schedule II). There is nothing 'on record to show that the Information, Broadcasting and National Heritage Division of the Federal Government (the respondent in WP 1548) had been permitted by the Law Division to engage a private counsel, let alone the reason for doing so.
20. The Attorney General for Pakistan and the Advocate General of the Provinces are Constitutional office holders (Article 100 and Article 140 respectively of the Constitution) and perform very important duties. It is their duty to give advice on legal matters to their governments and perform such other duties of a legal character referred or assigned to them. The present case pertains to the Federal Government therefore we shall consider the nature of the duties that have been assigned to the Attorney General for Pakistan and other law officers. The Attorney-General for Pakistan (Terms and Conditions) Rules, 2011 (PLD 2012 Federal Statutes 38) sets out the duties of the Attorney General which are the same as mentioned in the Constitution. The Central Law Officers Ordinance, 1970 (PLD 1970 Central Statutes 211) envisages the appointment of other law officers, including the Additional Attorney-General, Deputy Attorney General and Standing Counsel.
Pursuant to this statute the Additional Attorney-General, Deputy Attorney-General and Standing Counsel Rules, 2011 (PLD 2012 Federal Statutes 39) have been enacted, which in sub-rule (1) of rule 4 lists the duties of these law officers:-- "4. Duties. (1) It shall be the duty of the Additional Attorney-General, Deputy Attorney-General and Standing Counsel:
(a) to advise the Federal Government on any legal matter referred to them by the Federal Government and to perform such other duties of legal character as are assigned to them from time to time by the Federal Government.
(b)to appear on behalf of the Federal Government, if it so requires, in all cases, suits, appeals and proceedings before Supreme Court or a High Court, Federal Shariat Court or any Tribunal or Special Court constituted under any law in which the Federal Government is concerned; and (c)to keep inform Law, Justice and Parliamentary Affairs Division as well as the administrative Ministry/Division/Department concerned of the progress of the cases assigned to him."
21. The Constitution, the Rules of Business, the Attorney-General for Pakistan (Terms and Conditions) Rules, 2011, the Central Law Officers Ordinance, 1970 and the Additional Attorney- General, Deputy Attorney-General and Standing Counsel Rules, 2011 do not specifically permit the Federal Government to engage private counsel. There may however be cases which involve complicated questions of the Constitution or some extremely technical law which the Attorney.
General, in the case of the Federation, and the Advocate General, in the case of a province, and their law officers do not have the requisite ability to attend to. In such a case the concerned Constitutional office holder should certify that he and the Jaw officers do not have the requisite expertise in the field and that the engagement of a private counsel who is competent and experienced is required. Needless to state, the engagement of private counsel can only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individual (as was done in WP 1548) or for any other ulterior reason. The Government of Punjab has issued instructions (vide letter No. Admn-111:4-22/2015(P)6083 dated November 25, 2015) mandating that cases should be "conducted [only] through the duly appointed Legal Advisers.
However, in rare cases of extreme necessity, a private counsel may be engaged with prior approval in writing from the Government."
22.Incidentally the malaise of engaging private M counsel was also prevalent in our neighboring country India, where there is a similar legal regime with regard to, the enactment of rules and how government business is to be conducted (Articles 78 and 166 respectively of the Indian Constitution) and in this regard 'allocation of business' rules have been made. The Government of India's Ministry of Law and Justice, Department of Legal Affairs has issued "Office Memorandum" dated January 16, 2015 stipulating that only for "compelling reason" private advocate can be engaged and this too only with the prior approval of the Department.
23.It may be mentioned that the present Chief Justice of this Court, Hon'ble Mian Saqib Nisar, when he was a judge of the Lahore High Court, had taken exception to the engagement of a private counsel by the Punjab Housing Department in September 2007. The learned Judge took umbrage at the waste of public resources, particularly when the office of the Advocate General had a budget of seventy nine million rupees, therefore, there was no justification to expend an amount of one million rupees on private counsel which was a waste of resources. Justice Mian Saqib Nisar (as he then was) observed that the Government was causing loss to the national exchequer by engaging private counsel despite the availability of enough law officers to dispense its work. This matter was also reported in the media (English newspaper 'Dawn' published on September 19, 2007).
24.It is regrettable that governments persist in engaging private advocates for no justifiable reason, which practice must now stop. If the procedure as mentioned above (in paragraph 22 above), or a better one prescribed by governments, is not followed before engaging a private advocate then any statement made before a Court or comments/written statement that are filed would not be binding on the concerned government. Moreover, to pay the fee of such private advocate would constitute financial impropriety by the person who does so on behalf of the government, subjecting him/her to disciplinary action in accordance with the applicable law.
25. We had dismissed this appeal in Court on January 23, 2017 for reasons to be recorded and these are the reasons for doing so. The office is directed to send a copy of paragraphs 21 and 24 to the Attorney General for Pakistan, the Advocate Generals of all the Provinces, the Secretary Establishment Division, the Chief Secretaries of the Provinces, the Law Secretaries of the Federation and Provinces and the Finance Secretaries of the Federation and the provinces for their information and compliance.