Tariq Saleem Sheikh, J. The Governor of the Punjab has appointed Respondent No.2 (Mr. Ahmad Awais) as Advocate General, Punjab, vide Notification No. Adm-III:08-04/2022/3484 dated 11.08.2022. The Petitioner, a practicing advocate of this Court, has filed this constitutional petition in the nature of Public Interest Litigation to challenge his appointment. He claims that under Article 140 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Governor can appoint only such person as the Advocate General who is qualified to serve as a Judge of the High Court. Article 195 fixes the retirement age of a High Court Judge at 62 years. Respondent No.2 is ineligible for the position since he is 73.
2. Mr. Mukhtar Ahmad Ranjha, Additional Advocate General, has opposed this petition. He contends that the appointment of Respondent No.2 is legal, valid, and unexceptionable. He argues that the Constitution does not prescribe any retirement age for the Advocate General so Article 195 cannot be applied to disqualify a person beyond the age of 62 for appointment to the post.
3. The Advocate General for a Province is appointed under Article 140 of the Constitution which reads as under:
140. Advocate General for a Province. - (1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate-General for the Province.
(2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government.
(3) The Advocate-General shall hold office during the pleasure of the Governor [and shall not engage in private practice so long as he holds the office of the Advocate-General].
(4) The Advocate-General may, by writing under his hand addressed to the Governor, resign his office.
4. Article 193(2) of the Constitution sets out the eligibility criteria for appointing a High Court Judge.
It inter alia provides that the nominee must be at least forty-five years old. On the other hand, Article 195 states that a High Court Judge shall hold office until he turns sixty-two unless he resigns or is removed from office earlier in accordance with the Constitution. The issue in the present case is whether the retiring age mentioned in Article 195 also applies to the Advocate General. Anyone over that age is disqualified for appointment to that position.
5. The positions of the High Court Judge and the Advocate General are distinct. There is a separate mechanism for appointment, remuneration, tenure, and removal from these posts. Their responsibilities differ as well. Article 140 governs the appointment of the Advocate General, which is found in Chapter 3 of Part IV of the Constitution, whereas Part VII governs the Judicature. Article 195 is in Chapter 3 of Part VII. Thus, the constitutional framework for the offices of Advocate General and the High Court Judge is completely different.
6. Article 140 of the Constitution, which provides for the appointment of an Advocate General for a Province as aforesaid, incorporates Article 193(2) only by reference. If the framers of the Constitution intended to prescribe the upper age limit for the appointment of Advocate General or to set the age of retirement for him, they would have specifically said so. In G.D. Karkare v. T.L.
Shevde & others (AIR 1952 Nagpur 330), while interpreting Articles 165 and 217 of the Indian Constitution (which are parallel to Articles 140, 193(2), and 195 of our Constitution of 1973), a Division Bench of the Nagpur High Court held that the provision relating to retirement age for a High Court Judge is "a guarantee of tenure during good behaviour." The Court further said: "If the provision in the first clause of Article 217 viewed as a guarantee of tenure of the office until the age of sixty is not available to the Advocate-General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate-General after the age of sixty years. We have no doubt about the point. Even if the question is considered as not free from doubt, as the applicant desires to construe the first clause of Article 217 as a disabling provision against the non-applicant, we cannot forget that provision entailing disabilities have to be construed strictly: Parameshwaram Pillai Bhaskara Pillai v. State, 1950-5 Dom L R (Trav) 382. The canon of construction approved by their Lordships of the Privy Council is that if there be any ambiguity as to the meaning of a disabling provision, the construction which is in favour of the freedom of the individual should be given effect to: David v.
De'Silva, (1934) AC 106 at p.114."
Karkare was approved by the Constitution Bench of the Indian Supreme Court in Atlas Cycle Industries Ltd, Sonepat v. Their Workmen [1962 Supp.(3) SCR 89: AIR 1962 SC 1100]. It was also approvingly cited by the Supreme Court of Pakistan in Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of the Punjab, and others v. Muhammad Ashraf Khan and others (PLD 2011 SC 7).
7. In State of Uttaranchal v. Balwant Singh Chaufal & others (AIR 2010 SC 2550), a two-member Bench of the Supreme Court of India thoroughly surveyed the entire case-law on the subject and held that "the controversy has been fully settled that the Advocate General for the state can be appointed after he/she attains the age of 62 years while the Attorney General for India can be appointed after he/she attains the age of 65 years."
8. The first case from our jurisdiction that may be relevant to the present discourse is Malik Hamid Sarfraz v. Federation of Pakistan (PLD 1979 SC 991). The petitioner's counsel contended that Mr. Sharifuddin Pirzada was not competent to appear in the case as Attorney General because he was also in charge of the Ministry of Law and Parliamentary Affairs, and was performing other additional functions. He argued that, according to Article 100 of the Constitution, a person appointed as Attorney General for Pakistan must be qualified for appointment as a Judge of the Supreme Court. Hence, he may be under the same constraint as a Supreme Court Judge under Article 207 of the Constitution and could not take another assignment that included the right to remuneration. The apex Court held that merely because the Constitution specifies certain qualifications for appointment as Attorney General with reference to a Supreme Court Judge does not mean he would be subject to the same disabilities as him. Following this dictum, in Secretary, Ministry of Law, Parliamentary Affairs, and Human Rights, Government of the Punjab, and others v. Muhammad Ashraf Khan and others (PLD 2011 SC 7), the Hon'ble Supreme Court ruled that under Article 140 a person appointed as Advocate General should meet the requirements for appointment as a High Court Judge. However, this does not imply that he is subject to the same restrictions in other areas that the Constitution places on a High Court Judge. The apex Court also approvingly cited Balwant Singh Chaufal, supra.
9. Lately, in Syed Aziz-ud-Din Kakakhel v. Governor Khyber Pakhtunkhwa through Principal Secretary, and others (PLD 2019 Peshawar 145), a Division Bench of the Peshawar High Court also held that the offices of the High Court Judge and the Advocate General are distinct and governed by different constitutional provisions. An exclusion imposed on a High Court Judge does not apply to the post of the Advocate General.
10. In view of the above, no exception can be made to the appointment of Respondent No.2 as Advocate General, Punjab. The impugned notification is valid.
11. The present petition is in the nature of Public Interest Litigation ("PIL"). According to Halsbury's Laws of India, "lexically, the expression public interest litigation means a legal action initiated in a court of law for the enforcement of public or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liability are affected."[1] Dr. Faqir Hussain states that "the raison d'tre of public interest litigation is to break through the existing legal, technical, and procedural constraints and provide justice, particularly social justice to a particular individual, class, or community who, on account of any personal deficiency or economic or social deprivation or state oppression are prevented from bringing a claim before the court of law."[2] The courts consider PIL a "part of the process of participative justice"[3] and an extremely important jurisdiction.[4]However, it must be exercised with great care and circumspection. In Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482), the Hon'ble Supreme Court of Pakistan held that a person could invoke the constitutional jurisdiction of the superior courts as pro bono publico but he must show that he is prosecuting, first, in the public interest and, second, for the public good, or the welfare of the general public.[5] In Muhammad Shafique Khan Sawati v. Federation of Pakistan (2015 SCMR 851), the apex Court emphasized that a citizen must first establish his bona fides in a PIL petition. He should demonstrate that he is not undertaking such litigation to advance a private or vested interest but to serve the public interest, good, or welfare. In Premier Battery Industries Private Limited v. Karachi Water & Sewerage Board and others (2018 SCMR 365), the Hon'ble Supreme Court stated: "Such litigation does not strictly fall under any part of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, it has received judicial recognition enabling the courts to enlarge the scope of the meaning of 'aggrieved person' under Article 199 of the Constitution to include a public-spirited person who brings to the notice of the court a matter of public importance requiring enforcement of fundamental rights. Nonetheless, the constitutional jurisdiction of the superior courts is required to be exercised carefully, cautiously, and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical, or malicious attacks that block or suspend the performance of executive functions by the Government".
12. Dealing with the question of bona fides in the case of a person approaching the court in the name of PIL, in Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & others (AIR 2008 SC 913), the Indian Supreme Court held: "Public interest litigation is a weapon which has to be used with great care and circumspection, and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at the redressal of genuine public wrong or public injury and not publicity oriented or founded on a personal vendetta. The court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain, private motive or political motivation, or other oblique considerations. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs."
13. In Gurpal Singh v. State of Punjab & others, [(2005) 5 SCC 136], the Indian Supreme Court ruled that before entertaining a PIL petition the court must be satisfied with (a) the applicant's credentials; (b) the prima facie correctness or nature of the information given by him; (c) the information is not vague and indefinite. The facts should reflect the gravity and urgency of the situation. It further held that the court should not allow anyone to make wild and reckless allegations besmirching the character of others and keep a check on public mischief. It should reject mischievous petitions trying to dispute lawful executive actions for oblique motives or to gain cheap popularity.
14. The courts should reject mischievous PIL petitions which try to dispute lawful executive actions for oblique motives or to gain cheap popularity. This is also necessary because they consume their valuable time and hamper the decision of other cases. In Sanjeev Bhatnagar v. Union of India & others (AIR 2005 SC 2841), the Indian Supreme Court dismissed the PIL petition by an advocate with costs of Rs.10,000/- as it was pointless and a "publicity interest litigation." Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra & others [2005 (1) RCR (Civil) 232: (2005) 1 SCC 590], the Supreme Court concluded that the PIL petition was an attempt to air personal grievances.
Therefore, it upheld the High Court's decision imposing costs of Rs.25,000/- on a member of the Bar in the sum of Rs.25,000/- for filing a frivolous and vexatious petition.
15. The issue raised in the present petition is not res integra. It was settled long ago. In my considered opinion, this petition lacks bona fides. It is, therefore, dismissed with costs of Rs.25,000/-.
1. Halsbury's Laws of India, First Edn., Vol.22, para 245.001, p.580
2. Faqir Hussain, Public Interest Litigation in Pakistan, Working Paper Series-5 (1993). Available at: https://sdpi.org/sdpiweb/publications/files/W5-Public%20Interest%20Litigation.pdf
3. Fertilizer Corporation Kamagar Uninon (Regd), Sindri, and others v. Union of India and others (AIR 1981 SC 344).
4. State of Uttaranchal v. Balwant Singh Chaufal & others (AIR 2010 SC 2550)
5. This case was cited with approval in Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394).