ORDER.
ALI BAQAR NAJAFI, J.--- This order shall dispose of Writ Petition No.34094 of 2016 titled "Sarfraz Muhammad Bargatt v. Minister of Law etc." along with present writ petition as common questions of law and facts are involved in both these petitions.
2. Through this Constitutional petition under Article 199 of the Constitution of Republic of Pakistan, 1973 appointment of Mr. Shahid Ahmed Ranjha, Advocate/respondent No.4 as senior legal Advisor made vide order dated 04.10.2016 has been challenged on the ground that after advertising the post of Legal Advisor of the Punjab Privatization Board by respondent No.3 on 28.05.2016, in total 30 candidates applied for and merit-wise recommendation was made by the Board vide letter dated 12.07.2016 to the Law and Parliamentary Affairs Department Government of Punjab, Lahore with the following priority-- 1.Mr. Sarfraz Muhammad Bargatt 2.Mr. Shafique Ahmed 3.Mr. Manzoor Hussain Dogar However, on 04.10.2016, respondent No.4 was appointed as Senior Legal Advisor who stood at Sr.
No.10. Adds, that a recommendation of the autonomous body has to be followed by respondent No.3 as mandatory. Adds that petitioner has 20 years of flawless judicial service career and has more than 5 years active practice as an Advocate of the High Court. Further adds that the act of Selection Committee constituted under para 3(5) of Engagement of Legal Advisors and Special Advocates by statutory/Autonomous Bodies under the Administrative Control of the Government of the Punjab on regular basis for two years is against Sections 6(k) and 14 of the Punjab Privatization Board Act, 2010 under which it is only the Board who can appoint the Lawyers and Advisors under the terms and conditions of employment.
3. The respondent No.2/Punjab Privatization Board has submitted contesting parawise comments.
However, the report and parawise comments submitted by respondent No.1/Secretary Law and Parliamentary Affairs Department contested on the ground that respondent No.2 Punjab Privatization Board is an autonomous body but under the Administrative control of Colonies Department, Board of Revenue under the Rules of Business, 2011, under the policy dated 14.05.2011, regarding Engagement of Legal Advisor and special Advocate by Statutory/Autonomous Bodies under the administrative control of the Government of Punjab, the appointments are made on regular basis for a period of two years by a selection committee after advertisement in the newspaper. It was stated that out of two one seat was filled up and one is to be re-advertised where the petitioner can try his luck. While placing reliance upon Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others (PLD 2011 SC 7), prays for dismissal of the writ petition by reiterating that recommendations of the respondent/Board are not binding upon the petitioners.
4.Arguments heard. File perused.
5.After hearing the learned counsel for the petitioner and the learned A.A.G., the situation is that respondent No.2 and the petitioner are supporting each other whereas the Government of Punjab has taken a stand that appointment of respondent No.4 was made after considering the recommendations by the Privatization Board, which has no binding effect upon the Government.
To appreciate the respective contentions, I have gone through the Punjab Privatization Board Act, 2010 and have found that Section 6(k) reads as follows:- "The Board shall appoint advisors, consultants, valuators, actuaries, lawyers, auditors and such other staff as may be necessary for the discharge of its functions under this Act, and determine the terms and conditions for such appointment".
Under Section 14 it can also appoint advisors, consultants and agent. Section 14 is reproduced is under:
1. Advisors, consultants and agents.- (1) The Board may employ any technical, professional and other agents, advisors and consultants including banked engineers, architects, valuators, accountants, auditors, lawyers, actuaries, assessors, auctioneers, and other persons to transact any business or to do any act required to be transacted or done in the exercise of its powers, the performance of its functions, or for better implementation of the purposes of this Act.
(2) The Board shall determine the terms and conditions of the employment under subsection (1). As per policy letter dated 14.05.2011 of the Government of the Punjab Law and Parliamentary Affairs under para 3 a procedure for appointment of the legal advisors. Under pana 3(4) the autonomous body shall forward recommendations and under para 3(5) such recommendations shall be received and consider by a Selection Committee comprising of 5 members, including a representative of the autonomous body not below the rank of an officer of BS-19 and under para 5(a) the Government shall appoint the applicant recommended by the committee as Legal Advisor for autonomous body on the terms fixed by said committee.
6.Under Rule 20 of the Rules Department shall consult the Law and Parliamentary Affairs Department and under Rule 20(8) no department shall engage a private counsel for representing it in any case before High Court, Federal Shariat Court or the Supreme Court of Pakistan except with the prior permission of the Law and Parliamentary Affairs Department and its Approval by the Advocate General. The Privatization Board is the department under the Colonies Department under serial No.4 of the schedule made with reference to Rules 2 and 3.
7. The minutes of the meeting dated 19.08.2016 reveals that Mr. Muhammad Ashraf, Secretary Punjab Privatization Board, attended as member of the committee marked at serial No.11 who consented to ignore the recommendations sent by the Board. Besides, no reasons were given to disagree with the merit list prepared by the Board. Needless to mention that the word "shall be considered" in para 3(5) has a binding effect but it cannot be equated with "shall be appointed" which means that if some one below the number in merit list is considered suitable, some well- founded reasons in support of such suitability should be given by observing an objective criteria.
Besides, it is not mentioned in the record as to whether the representative of the Board ever actively participated/consented or even consulted in the process. No assenting or dissenting note was even recorded by him.
8.The judgment cited as Secretary, Ministry of Law, Parliamentary Affairs and Human Rights Government of Punjab and others (PLD 2011 SC 7), is not applicable to the fact of this case, as it relates to the appointment of Advocate General, a constitutional post. The other judgment Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCM R 960), is also not helpful to respondents as in that case the merit was upheld, which this Court also intended to do.
9.In the facts and circumstances, the D.B. judgment titled Ghulam Hassan M. Paryani v. Karachi Port Trust and 4 others reported as (1992 M LD 1128), may have some analogy in which it was held that the Law Division cannot give a binding directions to any other division to appoint a Legal Advisor. For what has been stated above, I am of the considered view that in the meeting dated 19.08.2016 the case of the petitioner was not considered as per recommendations made by respondent No.2/Punjab Privatization Board, therefore, this petition is partly allowed and the appointment of respondent No.4 is set aside. The committee shall however consider the merit-wise names recommended by respondent No.2 and select the suitable candidates by giving reasons and applying an objective criteria.