MUSARRA T HILALI, J.---Petitioners, Raja Muhammad Zubair and others, through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have prayed that Notifications No. E&A/LD/2-13/2018 and No. E&A/LD/2-13/2018 dated 02.07.2018 may be struck down by reinstating the petitioners to their respective positions as they were on 02.07.2018 and also Notifications No. E&A/LD/2-13/2018/2567-33 and No. E&A/LD/2- 13/2018/2567-33 dated 02.07.2018 by appointing respondents Nos.4 to 29 may be set aside.
2. Vide order sheet dated 09.07.2018 of Peshawar High Court, Abbottabad Bench, the case was sent to this Court for disposal due to non-availability of Division Bench during summer vacations.
3. In essence, it is the petitioners' case that they were removed from their respectiv e positions as Law Officers vide Notification No. E&A/LD/2-13/2018 and No. E&A/LD/2-13/2018 dated 02.07.2018 of Government of Khyber Pakhtunkhwa, Law, Parliamentary Affairs and Human Rights Department, Peshawar without any notice, and subsequently , vide Notifications No. E&A/LD/2-13/2018/2567-33 and No. E&A/LD/2-13/2018/2567-33 dated 02.07.2018, respondents Nos. 4 to 29 were appointed as Law Officers on contract basis. The petitioners, being aggrieved of the afore stated position, have approached this Court for redressal of their grievances.
4. Learned counsel appearing on behalf of petitioners assisted by Syed Sikandar Hayat Shah, Advocate contended that the interim setup / caretaker Government is launched only to facilitate the Election Commission for conducting peaceful election and transfer of power to the next elected government; that they had very limited powers of posting and transfer that too at the apex level of the department and that is to be done within frame work of section 230 of the Elections Act, 2017. Learned counsel added that under Article 224A(1), nowhere performance of regular duty of an elected government is bestowed upon the caretaker government. In support of his arguments, learned counsel placed reliance on 2013 SCMR 1205 . Learned counsel further added that the petitioners have been discriminated upon as two of the Additional Advocate General appointed by the previous Political Government were retained by the caretaker Government. Reliance was placed on PLD 2013 Lahore 598. He has, therefore, prayed that the impugned Notifications, referred to above, issued by official respondents may be struck down being illegal, void ab-initio and without jurisdiction.
5. The worthy Advocate General representing the respondents made his submission in the matter and thereafter respondents Nos.4 to 29 who were present in the Court on notice further elaborated their stance in the matter .
6. It was mainly argued on their behalf that from the substance of the instant writ petition, it transpires that their main grievance is their removal from service and no prayer for their reappointment has been made in the said writ; that it is the bounden duty of caretaker setup to conduct fair and free election so unless and until the incumbents who served under a political Government are not removed from their respective offices, this exercise cannot be done fairly, freely and transparently; that being contract employees the right of the petitioners were neither guaranteed nor create any vested right in petitioners' favour and under the terms and conditions of their employment, it can be terminated any time without assigning any reason. It was further emphasized that in view of fiduciary nature of the client-counsel relationship between the State and Law Officers, the removal of the petitioners is certainly reasonable and adjustified by public interest and, therefore, the caretaker government has the power to make short term appointment relating to the matter . Reliance was placed on PLD 2013 Lahore 598 and also on an unreported judgment of the Apex Court bearing Civil Petition No.2348 of 2016 (Muhammad Javaid Khan v.
Government of Khyber Pakhtunkhwa through Chief Secretary , Peshawar and others ).
Arguments heard and appended record gone through.
6(sic). Having heard the worthy counsels for the parties and the respondents, we find that the main controversy involved in this writ petition evolves around the question whether section 230 of the Election Act, 2017 gives unfettered and naked, hire and fire powers to the C caretaker Government for removing/terminating an employee either permanent or on contract.
7. Under Article 52 of the Constitution of Islamic Republic of Pakistan, 1973, on completion of its term, the National and the Provincial Assemblies are dissolved and for the purpose of administrative continuity a caretaker Government is formed which serves the period of time between the dissolution of Assemblies and formation of new Government.
8. The mandate and functions of the caretaker Government as defined in Section 230 of the Election Act, 2017 are reproduced as under:-
230. Functions of caretaker Government .---(1) A caretaker Government shall-- a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government, b) assist the Commission to hold elections in accordance with law; c) restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and d) be impartial to every person and political party .
(2) The caretaker Government shall not- a) take major policy decisions except on urgent matters; b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government; enter into major contract or undertaking if it is detrimental to public interest; d) enter into major international negotiati on with any foreign country or international agency or sign or ratify any international binding instrument except in an exceptional case; make promotions or major appointments of public officials but may make acting or short term appointments in public interest; transfer public officials unless it is considered expedient and after approval of the Commission; and g) attempt to influence the elections or do or cause to be done anything which may, in any manner , influence or adversely affect the free and fair elections.
(3) The Prime Minister , Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form and the Commission shall publish the statement of assets and liabilities in the official Gazette.
(4) In this section, caretaker Government' means the caretaker Federal Government or a caretaker Provincial Government.
9. From the above quoted section of law, it appears that the primary role of caretaker Government. is to attend day- to-day matters necessary to run the affairs of the government and to create a condu ctive atmosphere for a free and fair elections and to transfer powers from one elected government to another .
10. The caretaker Government enjoys limited powers of administrative continuity within the available resources while preventing any major decision from being taken. In the instant petition the petitioners were removed from their respective seats vide Notifications, impugned herein, without assigning any reason and thereafter appointed respondents Nos. 4 to 29 on the same date while two of the Additional Advocate Generals were retained by the caretaker Government. The worthy Advocate General while justifying the appointm ents made on 02.07.2018 vide Notifications No. E&A/LD/2- 13/2018/256 7-33 and No. E&A/LD/2-13/2018/2567-3 3 dated 02.07.2018 contended that such appointments came to be made only because a Caretaker Government being a client lost confidence in the Law Officers appointed by the outgoing Political Government and, therefore, for creating conducive environment for election, appointments in. Advocate General of fice were made.
11. Emergency/short term appointment is made to effectively manage short term staffing. Such appointments are made to temporarily fill a vacancy when a department has an emergency and where such vacancies are not expected to be filled immediately in a prescribed manner . In the instant case, vacancies were created on 2.07.2018 by removing the petitioners and on the same date respondents Nos. 4 to 29 were appointed which is against the mandate of Section 230 (2) (e) of the Elections Act, 2017 as the caretaker Government is not vested with the power of removal, dismissal, termination and reduction in rank. The said Section of the Act empowers a caretaker Government only to execute the routine functions of the Government making sure that the country does not come to a standstill position in the time between dissolution of the Parliament till the new elected Government is formed.
Reference may be made to the decision rendered by the august Supreme Court in case titled Khawaja Muhammad Asif v. Federation of Pakistan and others (2013 SCMR 1205 ). Thus, the Notifications No E&A/LD/2-13/2018 and No. E&A/LD/2-13/2018 dated 02.07.2018 removing the petitioners from their respective offices is nothing but mala fide exercise of powers and is contrary to the mandate of the statute. In addition to the above, some of the respondents were not even eligible to be appointed as Additional and Assistant Advocate General being short of the required experience. Besides, no reason for selective loss of confidence has been given by the of ficial respondents.
12. The decisions relied by worthy Advocate General need not be considered in detail as they have no application to the facts of the present case being made by an elected government.
13. In view of what has been discussed above, the instant writ petition is allowed, Notifications No. E&A/LD/2- 13/2018, No. E&A/ LD/2-13/2018, No. E&A/LD/2-13/2018/2567-33 and No. E&A/LD/2- 13/2018/2567-33 dated 02.07.2018 are one without jurisdiction, void ab-initio and non est in the eye of law and are liable to be struck down.
Order accordingly .
14. Above are the reasons for the short order of even date.